the impact of judicial activism in illinois

THE IMPACT OF
JUDICIAL ACTIVISM IN
ILLINOIS
WORKERS' COMPENSATION RULINGS FROM
THE EMPLOYER'S PERSPECTIVE
of
1
TABLE OF CONTENTS
4
8
EXECUTIVE SUMMARY
RECAP OF KEY DECISIONS IN WORKERS’ COMPENSATION
8
Traveling Employees
The Venture-Newberg Perini Stone and Webster
v. Illinois Workers Compensation Commission
Mlynarczyk v. Illinois Workers Compensation Commission
Kertis v. Illinois Workers Compensation Commission
Cox v. Illinois Workers Compensation Commission
Potenzo v. Illinois Workers Compensation Commission
Metropolitan Water Reclamation District of Greater Chicago
v. Illinois Workers Compensation Commission
9
Permanency Awards
Will County Forest Preserve District v. Illinois Workers Compensation
Commission Cassens Transport Company v. The Industrial Commission
E.R. Moore Co. v. Illinois Industrial Commission
10
Mental-Mental Injuries
Chicago Transit Authority v. Illinois Workers Compensation Commission
Diaz v. Illinois Workers Compensation Commission
10
Employee Discharge and Total Temporary Disability Benefits
11
Violation of Workplace Safety Rules
11
J.S. Masonry, Inc. v. The Industrial Commission
Injuries Occurring While Employee is Outside the Scope of Employment
11
Interstate Scaffolding, Inc. v. Illinois Workers Compensation Commission
Circuit City Stores v. Illinois Workers Compensation Commission
Johnson v. Illinois Workers’ Compensation Commission
Repetitive Trauma Injuries
Peoria County Belwood Nursing Home v. The Industrial Commission
12
Durand v. The Industrial Commission
Pre-existing Conditions
Sisbro, Inc. v. The Industrial Commission
12 Intervening Events
Vogel v. The Industrial Commission
2
13
ASSESSMENT OF LEGISLATIVE CHANGES AND INTERSTATE
COMPETITIVENESS 13
Legislative Action this Decade
15
Relevant Multi-State References
19
Overview of Commission and Reviewing Courts Roles
20
Threshold Considerations: Causation and Compensability
Causation
Compensability
23
61
63
66
72
73
74
DETAILED CASE SUMMARIES
23
Traveling Employee Doctrine Redefined and Greatly Expanded
32
Court Rejects 100 Years of Precedent for Determining Permanent Partial Disability
Benefits for Shoulder Injuries
34
Wage Differential Awards Not Reduced Despite Increased Earnings
36
Odd-Lot Doctrine: Judicial Shift of Burden of Proof to Employer in Permanent and
Total Disability Claims
39
Appellate Court Relaxes Mental-Mental Standard
44
Employee Discharge Irrelevant to Obligation to Pay Total Temporary Disability Benefits
46
No Relief for Employers for Injuries Resulting from Workplace Safety Violations
48
Personal Comfort and Good Samaritan Doctrines Expand Compensability
50
Erosion of “Personal Deviation” Exception from Compensability
51
Causation: “A Gateway” Issue for Illinois Employers
52
Repetitive Trauma Injuries - Accidental Injury Standard Liberalized
54
Repetitive Trauma Injuries - Statute of Limitations Disregarded
57
Limitations on Compensability of Pre-Existing Conditions Virtually Eliminated
59
Employer Liability for Subsequent Injuries Expanded
CONCLUSION: CLEAR CASE OF JUDICIAL ACTIVISM
LEGISLATIVE PRIORITIES IN RESPONSE TO ILLINOIS JUDICIAL ACTIVISM
KNOW YOUR JUDGES & THEIR DECISIONS
68
Current Illinois Supreme Court Participants in Key Workers’ Compensation Decisions
66
Current Illinois Appellate Court Participants in Key Workers’ Compensation Decisions
65
Biographies
CASES REVIEWED
BIBLIOGRAPHY
ACKNOWLEDGEMENTS
3
EXECUTIVE
SUMMARY
I
llinois has become an attractive business target. Unfortunately, the attraction is not one that
would motivate businesses to establish or expand operations in Illinois. Rather, we have captured
the interest of more economically robust and regulatory savvy states that are all too eager to
offer Illinois employers a home in a more business-friendly environment, where employers feel the
workers’ compensation system is unbiased and attentive to the impact workers’ compensation laws
have on cost competitiveness. Previously, overtures of this nature were confined to our neighboring
states. The fact that the governors of Texas and Florida actively recruited Illinois business executives
to relocate to their states during the past year sends a clear signal that businesses are ripe for the
picking in Illinois.
Not surprisingly, among the advantages touted by Texas and Florida is that their workers’
compensation costs are substantially lower than those in Illinois. Workers’ compensation insurance
premium index rates for all 50 states are compiled and ranked biennially by the Oregon Department
of Consumer and Business Services (the “Oregon report”). The 2012 Oregon report ranks Illinois as
having the 4th highest workers’ compensation insurance premium rate ($2.83 per $100 of payroll)
in the nation, as compared to Florida’s ranking of 29th highest premium rate ($1.82 of $100 payroll)
and Texas’ ranking of 38th highest premium rate ($1.60 per $100 of payroll). This means on average
for every $1,000 of wages, an Illinois employer pays $10.10 more in workers' compensation
insurance premium costs than an employer in Florida and $12.30 more than an employer in Texas.
For example, an Illinois employer with 100 employees and an average per capita payroll of $50,000
pays $50,500 more annually in workers' compensation insurance premium costs than an employer
in Florida and $61,500 more than a Texas employer. These disparities are even greater for higher
risk jobs such as manufacturing and construction employment.
Workers’ compensation insurance premium rates are not only higher
in Illinois, the rates increased in Illinois over the past eight years, while
premium costs in neighboring states during the same period decreased.
A comparison of workers’ compensation insurance premiums rates in Illinois and its neighboring
states clearly shows that Illinois has a significant problem.
Other significant workers’ compensation cost drivers for employers in Illinois include escalating
medical service costs, overutilization of medical services, high indemnity benefit costs and
increased litigation costs. For attracting and retaining highly skilled, good-paying jobs, workers'
compensation costs are a critical consideration in a company's location selection.
4
Workers' Compensation Premium Rates
(Per $100 of Payroll)
4.00
3.75
3.50
3.25
3.00
2.75
2.50
2.25
2.00
1.75
1.50
1.25
1.00
2004
2006
2008
2010
2012
Illinois
2.65
2.69
2.79
3.05
2.83
Wisconsin
2.27
2.18
2.12
2.21
2.15
Kentucky
3.38
3.78
2.96
2.29
1.96
Iowa
1.91
1.75
1.86
1.82
1.90
Missouri
2.67
2.50
2.20
1.90
1.62
Indiana
1.24
1.24
1.23
1.16
1.16
Source: Oregon Department of Consumer & Business Services "Workers' Compensation Rate Ranking Summaries" for 2004–2012
For public sector employers, there is a growing awareness of the adverse effect of the current
workers' compensation system on workforce efficiency. Rising workers’ compensation costs
reduce the availability of government services and place greater pressures on taxpayers.
Workers’ compensation laws, administrative decisions and legal rulings interpreting the law
predominate the criticisms employers repeatedly lodge about Illinois’ business climate.
5
JUDICIAL ACTIVISM:
A KEY FACTOR IN INCREASING WORKERS’
COMPENSATION COSTS IN ILLINOIS
The Illinois Workers’ Compensation Act (820 ILCS 305/1 et.seq.) (the “Act”) provides relatively
minimal direction or guidance as to the interpretation of its extensive provisions. This is particularly
true with respect to threshold issues of causation and compensability.
Accordingly, legal principles interpreting the Act have evolved through judicial decisions. The
overriding principle unabashedly employed by the Illinois judiciary has historically been, and
continues to be, that the Act is remedial in nature and must be construed liberally in favor of injured
workers. This judicially active approach ignores the fact that adoption of modern no-fault workers'
compensation statutes was a result of a trade-off between labor and business. Injured workers
benefited by receiving payment for medical treatment and lost wages without having to engage
in protracted, uncertain and costly litigation necessary to prove fault on the part of the employer
under common law principles. Employers benefited from elimination of common law claims for
pain and suffering and punitive damages. However, employers were also supposed to benefit by
being able to assess their risk in terms of financial and legal exposure for work-related injury claims
with some degree of certainty. As illustrated by the decisions discussed below, persistent judiciary
expansion of coverage of the Act generally, and the outer limit of compensability, specifically,
eliminates predictability of risk and actually incentivizes litigation.
The Illinois Chamber of Commerce has long recognized the need for fundamental reform to
the workers' compensation law in Illinois and has continually advocated for meaningful changes
necessary to reduce employers' workers’ compensation costs and improve the overall business
climate. The purpose of this report is to educate Illinois businesses and policy makers as to the extent
and effect of expansive and liberal interpretation of the Act by the judiciary, which goes unchecked
by the legislature. Cases summarized in this report focus on decisions where the holdings have
broad applicability to a wide range of Illinois employers, both private and public. Nothing in this
report should be construed as suggesting the Illinois judiciary is acting in a nefarious manner or to
call into question the intellectual competence, ability or qualifications of the individual jurists.
The decisions summarized in this report address judicial activism with respect to the Act’s provisions
This report highlights important Illinois court decisions that
have expanded employer liability and contribute to Illinois'
reputation for having a costly workers' compensation system.
6
In many instances, the Illinois courts have put Illinois out-of-step with competing states
regarding the breadth of employer responsibility for compensating workplace injuries.
relating to causation, compensability, and employers’ obligation to pay indemnity benefits. The
decisions in the compensability and indemnity payment obligation sections are all recent decisions
(with the exception of the decision discussing the “odd-lot” doctrine) and clearly illustrate the fluidity
of these areas, which are at the crux of Illinois employers’ steady increase in obligations and costs.
The decisions relating to coverage of the Act, causation, repetitive trauma, pre-vexisting conditions
and intervening events, while not as recent, also illustrate the direct relationship between judicial
activism in expanding compensability of workers’ compensation claims and a corresponding
expansion of employers’ liability and obligations.
Illinois business owners, public officials and voters need to be aware of these key decisions and
their deleterious impacts on job creation and retention opportunities. Hopefully, this report will be
useful to members of Illinois’ judiciary in facilitating their appreciation of the far reaching impacts
of expanding judicial interpretation of workers’ compensation law upon employers’ desire or ability
to conducting business in Illinois with the high cost of workers’ compensation expenses.
In conclusion, the essence of Illinois’ troubled workers’ compensation system is two-pronged:
(1) unfettered judicial discretion in interpreting the workers’ compensation law with the clear
objective of expanding compensability of workers’ compensation claims; and (2) the failure of the
Illinois General Assembly to pass legislation clearly expressing legislative intent and parameters of
effectuating the provisions of the Act with the objective of ensuring the workers’ compensation
system in Illinois is fair, predictable and benefits employers as well as injured workers.
Without legislative action, experience would suggest that Illinois
courts will continue to apply expansive interpretations of the
Act toward the goal of finding compensability wherever possible.
This trend must be reversed or the state’s economic status, stagnant population and job growth,
unacceptably high unemployment, escalating employment costs, and anti-business reputation
will continue to threaten Illinois’ economic vitality as employers choose to avoid an environment
where there is no confidence in predictability and apparently an ever-increasing exposure to risk.
7
RECAP OF KEY DECISIONS
IN WORKERS’ COMPENSATION RULINGS
TRAVELING EMPLOYEES
The Venture-Newberg Perini Stone and Webster v. Illinois Workers Compensation Commission,
2012 IL App (4th) 110847WC.
In Venture-Newberg, a divided Illinois Appellate Court conferred traveling employee status on
an individual who voluntarily chose to take a temporary job at a power plant located over 200
miles from his home. The temporary job involved work at a nuclear power plant under a contract
between the employer and Exelon Corporation, the operator of the plant. The majority focused on
the fact that the employee was not going to “work on the premises of the employer” in holding he
was a traveling employee. The employee was injured on what would have been his second day on
the job in an automobile accident on his way to the worksite from the motel where he spent the
night. According to the majority, the general rule precluding recovery for injuries occurring while
commuting to or from work did not apply because traveling employees are covered continuously
from the time they leave home until their return. Further, the claimant’s conduct at the time of
the accident–riding with a co-worker from the motel where he spent the night to the worksite–
was reasonable and foreseeable, thus satisfying “the different rules” applicable for determining
compensability in traveling employee workers’ compensation claims. The claimant’s injuries were,
therefore, compensable. The dissenting judges strenuously asserted that the majority expanded
the definition of a traveling employee far beyond its intended scope. The Illinois Supreme Court
recently heard an appeal of this decision.
Mlynarczyk v. Illinois Workers Compensation Commission, 2013 IL App (3d) 120411WC.
In Mlynarczyk the Appellate Court unanimously ruled that a cleaning lady employed by a janitorial
service to clean churches, offices and residences was a traveling employee because she did not
work at a fixed job site and her duties required her to travel to various locations in the Chicago area.
The Court held that injuries resulting when she slipped and fell on snow and ice at home as she was
walking to the vehicle in her driveway that would transport her to her next cleaning assignment
were compensable because, as a traveling employee, her “walk to the minivan constituted the
initial part of her journey to her work assignment” and was both reasonable and foreseeable.
Kertis v. Illinois Workers Compensation Commission, 2013 IL App (2d) 120252WC.
In Kertis the Appellate Court ruled that as a matter of law, a bank manager who was required to
perform duties at two bank branches within 20 miles of each other was a traveling employee
because “travel was an essential element of his job.” The Court held that injuries sustained by the
claimant when he fell in the public lot he parked in near the St. Charles office were compensable
because it was reasonable that the claimant would park in the lot while conducting business at the
branch office and foreseeable that he could be injured from a fall in the lot. This ruling suggests
“risks common to the public” are not a defense if the employee is designated as a traveling employee.
8
Cox v. Illinois Workers Compensation Commission, 406 Ill. App. 3d 541, 941 N.E.2d 961, 347 Ill.
Dec. 92 (1st Dist. 2010).
In Cox, the Appellate Court applied the traveling employee doctrine to find that it was foreseeable
that an employee, assigned an employer-owned vehicle 24/7, would use the truck to perform
a personal errand. The Court agreed that the errand constituted a personal deviation from the
employee’s scope of employment. However, the Court ruled the deviation was “insubstantial”
because the claimant had completed his errand and was on the way home when he was injured
in an automobile accident. Consequently, the injuries sustained by the employee while he was
conducting personal business were compensable.
Potenzo v. Illinois Workers Compensation Commission, 378 Ill. App. 3d 113, 881 N.E.2d 523, 317
Ill. Dec. 355 (1st Dist. 2007).
In Potenzo, the Appellate Court ruled injuries sustained by a truck driver in an assault from an
unknown assailant while making a delivery to a loading dock were compensable without showing
the risk of the injury to which he was exposed was greater than that of the general public because,
as a traveling employee, his job exposed him to “risks of the street.” In numerous prior court rulings
and Commission decisions, an unforeseen and unprovoked assault was considered a risk common
to the public and was not compensable. The judicially created concept of “risks of the street” is not
found in the Act and is subject to broad and varying interpretations.
Metropolitan Water Reclamation District of Greater Chicago v. Illinois Workers Compensation
Commission, 407 Ill. App. 3d 1010, 944 N.E.2d 800, 348 Ill. Dec. 559 (1st Dist. 2011).
In Metropolitan Water Reclamation District, the Appellate Court held that an employee required
to walk to a nearby bank several times a week to make deposits for her employer was a traveling
employee and injuries she sustained when she tripped on a “dip” between the sidewalk and a
commercial driveway were compensable. The Court expanded its ruling in Potenzo by holding that
when an employee is required to be on the street to perform employment duties, it is “presumed”
that the employee is exposed to risks of accidents from street hazards (in this case, the dip in the
sidewalk) to a greater degree than the general public.
PERMANENCY AWARDS
Will County Forest Preserve District v. Illinois Workers Compensation Commission, 2012 IL App
(3d) 110077WC, 970 N.E.2d 16, 361 Ill. Dec. 16 (3d Dist. 2012).
For nearly 100 years, workplace injuries to a shoulder have been treated by the Illinois Workers’
Compensation Commission as injuries to the arm under section 8(e)(10) of the Act for purposes
of determining permanent partial disability (PPD) benefits. In Will County the Appellate Court
disregarded this precedent and held that a shoulder is not part of an arm and awarded PPD benefits
under the Act’s “person as a whole” provisions instead. The Court’s decision in Will County not
only significantly increases employers’ liability for permanent partial disability benefits for shoulder
injuries, it effectively eliminates potential credits available under the Act to an employer for prior
and subsequent injuries to the shoulder sustained by the same claimant.
9
Although the Appellate Court noted that classification of a shoulder injury was an issue of first
impression, and the Court’s ruling significantly changed the 100-year old calculus for determining
PPD benefits for shoulder injuries, the Appellate Court refused to certify the matter as raising a
substantial legal question warranting consideration by the Illinois Supreme Court. Efforts to address
the Will County decision through legislative change have been unsuccessful.
Cassens Transport Company v. The Industrial Commission, 218 Ill. 2d 519, 844 N.E.2d 414, 300
Ill. Dec. 416 (2006).
In Cassens the Illinois Supreme Court ruled that without legislative action, the Commission did not
have jurisdiction to reduce a wage differential award, even if the claimant’s earnings had returned
to or exceeded their pre-accident level.
E.R. Moore Co. v. The Industrial Commission, 71 Ill. 2d 353, 376 N.E.2d 206, 17 Ill. Dec. 207 (1978).
In Moore the claimant developed contact dermatitis when her legs and feet were splashed with a
dry cleaning solvent at her workplace. The claimant was 58 years old and her prior work experience
was limited to domestic service and cleaning positions. The claimant’s physician testified that she
needed to avoid contact with chemical agents to avoid recurrence of her dermatitis. The Illinois
Supreme Court applied the “odd-lot” doctrine in ruling that the burden of proof shifted to the
employer to prove the claimant was capable of engaging in some type of regular and continuous
employment and that such employment was reasonably available.
MENTAL-MENTAL INJURIES
Chicago Transit Authority v. Illinois Workers Compensation Commission, 2013 IL App (1st)
120253WC.
In Chicago Transit Authority, the Appellate Court ruled the claimant’s psychological injuries were
compensable because she suffered a sudden, severe shock after the bus she was driving struck and
killed a pedestrian, even though the claimant did not seek treatment for over two months after the
accident.
Diaz v. Illinois Workers Compensation Commission, 2013 IL App (2d) 120294WC.
In Diaz the Appellate Court found that a police officer sustained compensable psychological injuries
resulting from a sudden, severe shock when an individual with a toy gun approached him during a
response to a neighborhood disturbance call. The Diaz majority created an “objectively reasonable
standard” for determining compensability in mental-mental cases.
EMPLOYEE DISCHARGE AND TOTAL TEMPORARY DISABILITY BENEFITS
Interstate Scaffolding, Inc. v. Illinois Workers Compensation Commission, 236 Ill. 2d 132, 923
N.E.2d 266, 337 Ill. Dec. 707 (2010).
In Interstate Scaffolding, the Illinois Supreme Court ruled an employee’s discharge, for any reason, is
irrelevant to—and does not end—an employer’s obligation to pay temporary total disability benefits
until the injured employee’s physical condition has stabilized.
10
VIOLATION OF WORKPLACE SAFETY RULES
J.S. Masonry, Inc. v. The Industrial Commission, 369 Ill. App. 3d 591, 861 N.E.2d 202, 308 Ill. Dec.
137 (1st Dist. 2006).
In J.S. Masonry, the Appellate Court reiterated longstanding judicial precedent in Illinois holding
that injuries resulting from an employee’s violation of a work safety rule are compensable so long
as the employee is engaged in performing duties required as part of his employment, regardless of
the seriousness of the safety rule violation.
INJURIES OCCURRING WHILE EMPLOYEE IS OUTSIDE THE SCOPE OF
EMPLOYMENT
Circuit City Stores v. Illinois Workers Compensation Commission, 391 Ill. App. 3d 913, 909 N.E.2d
983, 330 Ill. Dec. 961 (2d Dist. 2009).
In Circuit City, the Appellate Court ruled that injuries sustained by an employee who shoulderbutted a vending machine in order to help a co-worker dislodge a bag of chips were compensable
under the Good Samaritan doctrine adopted by the Illinois judiciary. In the past, the Good Samaritan
concept has been used to provide benefits where employees left the scope of employment
and were injured in efforts to provide assistance to another person in urgent or life-threatening
situations. The Court held that “what the Circuit City case lacked in urgency, it made up for in
familiarity and collegiality.”
Johnson v. Illinois Workers Compensation Commission, 2011 IL App (2d) 100418WC, 956 N.E.2d
543, 353 Ill. Dec. 681 (2d Dist. 2011).
In Johnson, the Appellate Court ruled injuries sustained by a county deputy sheriff in an automobile
accident were compensable. The employee left his assigned patrol zone to run a personal errand
and was injured in a collision when he ran a red light as he sped back to his patrol zone in response
to a dispatch. The employee did not request permission to leave his post, nor did he notify the
employer that he had left his patrol area, which was in violation of the employers’ rules and
regulations.
REPETITIVE TRAUMA INJURIES
Peoria County Belwood Nursing Home v. The Industrial Commission, 115 Ill. 2d 524, 505 N.E.2d
1026, 106 Ill. Dec. 235 (1987).
Peoria County is a landmark decision in which the Illinois Supreme Court overturned its own
longstanding precedent by holding that a claimant could establish a repetitive trauma injury was
an accidental injury without reference to a specific incident, traceable to a definite time, place and
cause. Peoria County significantly lowered the burden of proof and increased litigation of claims
for repetitive trauma injuries.
11
Durand v. The Industrial Commission, 224 Ill. 2d 53, 862 N.E.2d 918, 308 Ill. Dec. 715 (2006).
In Durand, the Illinois Supreme Court further broadened its ruling in Peoria County by disregarding
the three-year statute of limitations applicable to the filing of workers’ compensation claims for
repetitive trauma injuries. The Court indicated it did not want to “punish” a worker who allegedly
“worked in pain” by denying benefits. Durand established a precedent that potentially allows anyone
who did not take steps to timely file for benefits to side-step the clear requirements of the Act.
PRE-EXISTING CONDITIONS
Sisbro, Inc. v. The Industrial Commission, 207 Ill. 2d 193, 797 N.E.2d 665, 278 Ill. Dec. 70 (2003).
In Sisbro, the Illinois Supreme Court significantly expanded employer liability by virtually eliminating
longstanding “normal daily activity” and “no greater risk” limitations on compensability for
work‑related injuries that aggravated pre-existing conditions. The ruling awarded benefits to a
truck driver with a non-work-related bone disease whose ankle shattered as he stepped down
from a truck.
INTERVENING EVENTS
Vogel v. Illinois Industrial Commission, 354 Ill. App. 3d 780, 821 N.E.2d 807, 290 Ill. Dec. 495 (2d
Dist. 2005).
In Vogel, the Appellate Court ruled the employer was liable for lost time and medical expenses
(including a second surgery) resulting from injuries sustained by a claimant in three separate (nonwork-related) automobile accidents that occurred subsequent to the original surgery performed
relative to the claimant’s work-related injury. This ruling effectively ends the long-established legal
concept of an intervening and superseding event in defending workers’ compensation claims.
12
ASSESSMENT
OF LEGISLATIVE CHANGES & INTERSTATE
COMPETITIVENESS
LEGISLATIVE ACTION THIS DECADE
Massive changes increasing workers’ compensation benefits were made to the Act in 1975. During
the next three decades, proposed legislative changes required agreement of multiple stakeholders
with opposing goals and constituencies. What became known as the “agreed bill process” effectively
stifled significant legislative changes to the Act until 2005.
2005 Revisions Controlled by Pro-Labor Interests
The 2002 election of a democratic governor and democrat control of both Houses of the
General Assembly for the first time since 1974, facilitated pro-labor interests in making
significant changes to the Act focused on increasing benefits for injured workers. Pro‑business
groups approached the 2005 agreed bill process primarily from a defensive position, but were
successful in gaining some changes geared toward cost containment of medical benefits.
However, any potential savings for employers were undercut by increased costs resulting
from expanded benefit provisions and the adoption of one of the most generous medical fee
schedules in the country.
The 2005 changes to the Act made by P.A. 94-277 tipped in favor of labor and included a 7.5%
increase in permanent partial disability payments for injured workers, as well as increases to
the wage differential cap, burial benefits, and death benefits.
Business-supported measures that were approved included establishing a medical fee
reimbursement schedule capping medical service costs at 90% of the 80th percentile of
actual charges based on specified geographic areas (geo-zips), authorization for utilization
review procedures, and strengthened anti-fraud provisions.
Between 2005 and 2010, pro-business attempts to legislatively rein in spiraling workers’
compensation costs were blocked by pro-labor factions that had no interest in scaling back
the increased benefits enjoyed by their constituencies. During this period, interest in Illinois’
workers’ compensation laws, judicial rulings, and Commission operations heightened as the
business community and elected officials became increasingly aware of escalating employer
workers’ compensation costs, a deteriorating economy and a flagging business climate as
compared with other states.
13
An extended economic recession, passage of a significant corporate income tax hike and
dismal economic development rankings, which were researched and reported by multiple
organizations and publications, compromised the bottom lines of many businesses. Extensive
media coverage of an emerging scandal involving workers’ compensation benefits paid to
hundreds of Illinois Department of Corrections employees for carpal tunnel claims spurred
outcries for reform and it became politically imprudent for Illinois’ elected officials to continue
to ignore business’ demands for a more cost-competitive environment and reasonable
decisions where workers’ compensation is concerned.
2011 Improvements to the Act Fall Short of “True” Reform
By 2010, not only had savings anticipated from the 2005 legislative changes not materialized,
workers’ compensation insurance premium rates in Illinois increased by nearly 17 percent
while average rates across the country declined 19 percent. The 2010 Oregon report
documented Illinois’ precipitous fall from its median ranking of 23rd in 2004, to having the
3rd highest workers’ compensation insurance premium rates in the United States.
P.A. 97-18 was the culmination of months of efforts and made much needed improvements
to the Act and other provisions of law dealing with the workers’ compensation process.
However, it stopped short of making fundamental changes needed to truly reform the process
in Illinois in the following respects: (1) failure to tighten up Illinois’ extremely low causation
standard; (2) the effectiveness of provisions requiring the use of American Medical Association
guidelines in determining the level of impairment for permanent partial disability claims was
diminished by the inclusion of additional subjective factors that must also be considered; (3)
provisions authorizing employer directed managed care were diluted because of the opt-out
provisions that were inserted into the bill; (4) the disproportionate impact on healthcare
providers resulting from significant reductions in reimbursements for medical services for
injured workers; and (5) no provisions were adopted beyond the specific provisions of P.A.
97-18 that offered guidance to judges.
Nonetheless, P.A. 97-18 did make significant changes to the Act, including:
Carpal tunnel awards were capped at 15% of the loss of use;
• Duration of wage loss differential awards was limited to the later of the employee’s
normal retirement age of 67, or five years after the date of award;
• Medical fee schedule reimbursements were reduced 30% across the board and the
29 geographical regions (geo-zips) were reduced to 4 regions for doctors, and 14
regions for hospitals with nationally recognized reimbursement zip codes;
• Participation in utilization review (necessity and cost of medical services/treatments)
is mandatory if requested by the employer or insurer;
• Codification of existing case law holding that an injury occurring while an employee
is intoxicated does not arise out of the scope of employment and is therefore not
compensable;
14
• Creation of a statutory rebuttable presumption that the workplace injury is the
proximate cause of intoxication that arises based on the presence of alcohol,
impairment from unlawful use of cannabis or controlled substances, or if the injured
employee refuses a drug test; and
• Imposition of ethical and professional standards on arbitrators and commissioners,
as well as mandatory training requirements.
Cost Savings Derived Almost Exclusively From Healthcare Providers
An assessment performed by the National Council on Compensation Insurance, Inc. (NCCI)
of the changes to Illinois’ workers’ compensation process made by P.A. 97-18 resulted in
an 8.8% (average) reduction in workers’ compensation system costs (as compared to the
proposed reductions of 15-20% touted by proponents of the bill). NCCI allocated the
reduction as follows:
• Reduction in medical fee reimbursement schedule (-7.4%);
• Caps on permanent partial disability claims for carpel tunnel injuries (-0.6%) and;
• Limiting the duration of wage differential payments (-0.8%).
On July 30, 2013, NCCI announced a proposed overall advisory rate level change of -4.5%
effective January 1, 2014. The cumulative rate level reduction since enactment of P.A. 97-18
in 2011, is -13.3%.
RELEVANT MULTI-STATE REFERENCES
Workers’ compensation cost factors are dynamic as states may make changes each year. During
the last decade an increasing number of states have passed legislative changes in an effort to
reduce employer workers’ compensation costs. Some of the more substantive legislative changes
are recapped below, followed by charts indicating a correlation between changes to these states’
workers’ compensation laws and their respective workers’ compensation premium rate costs.
Missouri (2005)
• Bolstered causation standard.
• Limited benefits for employees who were under the influences of alcohol or illegal drugs
at the time of the accident.
• Increased penalties for fraud or abuse of workers’ compensation laws.
• Required performance audits for administrative law judges in an effort to promote neutrality
between the claimants and respondent employers.
15
Missouri (2012)­—Legislatively overturned two business-adverse judicial rulings interpreting the
2005 amendments holding that:
• Prior law limiting civil actions against co-employees was no longer applicable (e.g. an
injured worker could receive workers’ compensation benefits from the employer and then
bring a civil action against a co-employee for additional damages).
• Workers with occupational disease claims may file lawsuits rather than adjudicate the
claims through the administrative workers’ compensation system.
Texas (2005)
• Authorized employers to designate medical provider networks which employees will be
required to use for workers’ compensation medical care.
• Established a fee schedule for prescription drugs.
• Refined supplemental income benefits eligibility in terms of work-search requirements.
• Defined “reasonably required” healthcare as care that is clinically appropriate and considered
effective for the employee’s injury in accordance with evidence-based medicine or practice
standards.
• Defined “evidence-based medicine” as use of current best quality scientific and medical
evidence formulated from credible scientific studies, including peer reviewed medical
literature and treatment and practice guidelines.
• Added physical and occupational therapy to the list of medical services requiring
preauthorization by statute.
• Tightened timeframes for insurance carriers’ payment or denial of claims.
• Established a medical dispute resolution process to provide for review by an independent
review organization.
Florida (2005)
• Revised the medical fee reimbursement schedule.
• Increased limits on chiropractic services.
• Redefined eligibility standards for permanent total disability benefits.
• Reduced injured workers’ attorneys’ fees by retaining the attorney fee schedule and
prohibiting judges of compensation claims from awarding attorney fees that exceed the
schedule.
Kansas (2011)
• Established a higher causation standard.
• Provided employer credits for pre-existing conditions.
16
Montana (2011)
• Terminated medical benefits for permanent partial disability (PPD) claims 60 months from
the date of injury.
• Required use of 6th Edition of AMA Guidelines.
• Limited employer liability for injuries occurring off company premises by imposing
substantial statutory restrictions on the applicability of the personal comfort and traveling
employee doctrines to workers’ compensation injury claims.
Mississippi (2012)
• Adopted provisions denying compensation to a worker who is found to be under the
influence of alcohol or drugs, including the improper use of legal prescription drugs, when
an on-the-job injury occurs.
• Set a 60-day deadline for a worker who is hurt on the job to file medical records that
support the claim for compensation.
• Established a partial reduction in payments to any worker who is injured on the job but had
a pre-existing condition such as a bad back.
Tennessee (2013)
• Replaced a court-based adjudication system with an administrative process.
• Authorized the adoption of medical treatment guidelines.
• Improved the flow of medical information.
• Changed the method for calculating PPD benefits.
Oklahoma (2013)
• Replaced the Workers’ Compensation Court with an administrative dispute resolution
system.
• Revamped the indemnity benefit system to make it more predictable and easier to administer
without the need for attorney involvement.
• Allowed Oklahoma employers to opt out of the workers’ compensation system and
administer work related injury benefits to employees through a qualified benefit plan.
Authorized Oklahoma employers who remain in the workers’ compensation system to
• develop an alternative dispute resolution program subject to the Federal Arbitration Act.
17
States with Significant Changes to WC Law in 2005
Oregon Report State Ranking
(higher ranking equals lower average cost)
45
Oregon Report State Rankings
40
35
30
25
20
15
10
5
0
2006
2004
2008
2010
Missouri
Texas
Florida
Illinois
2012
States with Significant Changes to WC Law Since 2011
Oregon Report State Ranking
(higher ranking equals lower average cost)
Oregon Report State Rankings
45
40
35
30
25
20
15
10
5
0
2004
2006
2008
2010
2012
Kansas
Tennessee
Montana
Mississippi
Oklahoma
Illinois
Source: Oregon Department of Consumer & Business Services "Workers' Compensation Rate Ranking Summaries" for 2004–2012
18
OVERVIEW OF COMMISSION AND REVIEWING COURT ROLES
Illinois has established an administrative process for the implementation of the provisions of the
Act. The Illinois Workers' Compensation Commission (previously the “Illinois Industrial Commission”
or the “Industrial Commission”) was statutorily created for this purpose.
Arbitrators are charged with determining whether an employee’s claim for workers’ compensation
benefits is compensable. Arbitrators make findings of fact and conclusions of law on the threshold
issues of whether a causal connection between the work and the injury is present and whether the
injury arises out of and in the course of the employment. P.A. 97-18 mandated that all arbitrators
must be licensed attorneys.
Arbitrator decisions on claims for benefits under the Act are reviewable as a matter of right by a
panel of three commissioners. A Commission panel is composed of a commissioner representing
labor, a management commissioner and a public commissioner. The Commission is not bound
by an arbitrator’s factual findings or legal conclusions and may confirm or reverse the arbitrator’s
decision in whole or in part. Commission decisions are also reviewable as a matter of right to
the circuit court with jurisdiction over the matter. Circuit court review is limited to the review of
questions of law and fact addressed in the record. Issues not raised before the Commission may
not be raised for the first time on appeal. Commission decisions that are not overturned on appeal
carry precedential weight for subsequent Commission decisions.
Appellate review of circuit court decisions is also a matter of right. Appeals are made to the Illinois
Workers’ Compensation Commission Division (referred to herein as the “Appellate Court”), which is
a special division of the Illinois Appellate Court created by Illinois Supreme Court Rule 22. Appeals
are heard by a panel of five justices—one from each of Illinois’ five appellate districts—selected by
the Supreme Court justice from that district.
Pursuant to Supreme Court Rule 315(a), review by the Illinois Supreme Court is limited to cases
where at least two members of the Appellate Court panel deciding the case certify that it involves
a substantial legal question warranting review by the Illinois Supreme Court. Even if the matter is
certified by the Appellate panel, the Illinois Supreme Court is free to deny a petition for leave to
appeal.
19
Standard of Review of
Commission Decisions
Standards for review of Commission
decisions have also evolved through
judicial precedent and accord a great deal
of deference to the Commission. The
Commission is charged with determining
all questions of fact, assessing the credibility
of witnesses and drawing reasonable
inferences from competent evidence.
In 11 of the 19 decisions reviewed in
this report, the highest reviewing
court overturned Commission or trial
court decisions denying benefits.
A reviewing court is not supposed to reverse a Commission decision unless it is contrary
to law or its factual determinations are against the manifest weight of the evidence. A
factual determination is against the manifest weight of the evidence only when the opposite
conclusion is clearly apparent—meaning there is not sufficient evidence in the record to
support the Commission’s findings.
If the factual matters are undisputed and admit to only one conclusion, the judgment of
the Commission becomes a matter of law and the reviewing court is not bound by the
Commission’s decision. Reviewing courts are also not bound by the interpretations of the
Commission on questions of law.
In situations of mixed questions of law and fact or in which the facts admit to more than
one conclusion or from which more than one inference may be drawn, the reviewing court
will not disturb the Commission’s findings unless they are against the manifest weight of the
evidence.
THRESHOLD CONSIDERATIONS: CAUSATION AND COMPENSABILITY
Causation
The existence of a causal connection between the employment and the injury or disabling condition
at issue is central to the adjudication of claims for workers’ compensation benefits.
The Act is silent as to any standard for establishing the requisite causal connection. Judicial
precedent establishing a low threshold for causation in workers’ compensation cases is deeply
entrenched in Illinois workers’ compensation case
law. Several states require a stronger showing
of causality by requiring that the employment be
Judicial precedent establishing
the major, primary, prevailing, predominant, or
a low threshold for causation
even proximate cause of the injury. In Illinois, an
in workers’ compensation cases
injured employee need only show that some phase
or factor of the employment contributed to the
is deeply entrenched in Illinois
resulting injury or disabling condition for which
workers’ compensation case law.
benefits are sought.
20
Many parties, including the Illinois Chamber,
believe that strengthening the causation
standard is the key to reining in escalating
workers’ compensation costs. Pro-labor
interests have strenuously resisted any
legislative proposal to bolster causation in
Illinois.
In Illinois, an injured employee need
only show that some phase or factor
of the employment contributed to the
resulting injury or disabling condition
for which benefits are sought.
The Illinois Attorney General’s Office is
responsible for representing the state of
Illinois in its capacity as an employer before
the Illinois Workers’ Compensation Commission. In April 2012, Attorney General Lisa Madigan
delivered a report to the General Assembly noting the difficulty her office has experienced in
defending claims submitted by state employees at the Menard Correctional Institution because of
Illinois’ low causation standard:
In the cases involving Menard Correctional Center, for example, correctional officers have
obtained workers’ compensation benefits simply by presenting evidence that work could
have caused or aggravated their carpal or cubital tunnel syndrome. The State cannot succeed
in defending against these cases unless it can present independent medical testimony stating
that it is not possible that the correctional officer’s work even slightly aggravated a preexisting condition. It is extremely difficult, if not impossible, for the State to obtain credible,
independent medical testimony concluding that a correctional officer’s work at Menard
Correctional Center could not have even slightly aggravated the carpal or cubital tunnel
syndrome.
All Illinois employers face similar obstacles in defending workers’ compensation claims.
Throughout the protracted negotiations of P.A. 97-18, pro-labor interests refused to consider any
of the multiple proposals submitted by the Illinois Chamber to address causation. When it appeared
that negotiations were going to end with no legislation, the pro-labor faction finally countered
with a proposal to codify existing judicial precedent as to the burden of proof required to establish
compensability. Business groups reluctantly agreed because they did not want to jeopardize other
concessions they had obtained from labor that were also important to employers, including limits
on wage differential awards, use of AMA guidelines in determining PPD benefits and authorization
for employers to establish PPO networks.
Consequently, P.A. 97–18 included the following provision as Section 305/1(d)
of the Act: “to obtain compensation under this Act, an employee bears the
burden of showing by a preponderance of the evidence that he or she has
sustained accidental injuries arising out of and in the course of employment.”
21
It should be noted that this is an important change. However, its efficacy is questionable in light
of (1) the growing body of judicial precedent using a relaxed “reasonableness/foreseeability” test
(e.g. traveling employee doctrine) rather than the traditional risk analysis in determining whether
the injury for which benefits are sought “arose out of the employment”; and (2) expansion of the
“in the course of employment” requisite through the application of the personal comfort and Good
Samaritan doctrines, as well as liberal treatment of “deviations” from the scope of employment.
Compensability
A claim for workers’ compensation benefits is compensable under the Act only if the claimant
establishes by a preponderance of the evidence that the injury is accidental and that it both arises
out of and in the course of employment.
In order to establish that a work-related injury is accidental, the claimant must establish a specific
incident, traceable to a definite time, place and cause. Please note that judicial abrogation of this
requirement with respect to repetitive trauma injuries is discussed later in this report.
An injury arises out of employment if the performance of duties or acts required by the job exposes
the employee to an increased risk beyond that faced by the general public. Long-standing precedent
in Illinois establishes that there are three types of risk to be analyzed in determining whether an
injury arises out of employment: risks that are distinctly associated with the employment, risks
that are personal to the employee and neutral risks that do not have any particular employment or
personal characteristics.
Generally, injuries resulting from risks distinctly associated with the employment are almost
always compensable while injuries from risks that are personal to the employee are typically
not compensable. Injuries from neutral risks are compensable only if the injured employee was
exposed to the risk (by virtue of the employment) to a greater degree than the general public. The
traveling employee cases discussed below depart from the traditional risk analysis in favor of a
relaxed “reasonableness/foreseeability” standard.
An injury is considered to have occurred in the course of employment if
the employee was at work, or at his assigned location, and is performing
duties that are required by the job. Several cases discussed in this report
illustrate how judicial doctrines, concepts and exceptions, with no
statutory basis, operate to bring an employee whose conduct is outside
of the employment back into the scope so as to satisfy this requirement.
22
DETAILED
CASE SUMMARIES
TRAVELING EMPLOYEE DOCTRINE REDEFINED
AND GREATLY EXPANDED
Historically, injuries sustained by an employee while commuting to or from the workplace were
not considered to arise out of and in the course of employment. This view is predicated on the
proposition that an employee is not involved in performing duties for the employer while en route
to or from the workplace. Additionally, risk of injury at this juncture bears no relationship to the
employment and is based on the choice of the employee (where to live, how far from job, dangers
on the route, etc.).
The traveling employee doctrine is a judicially
adopted doctrine with no basis in Illinois statue.
It was initially grounded in the concept that employees who are required to travel as part of their
job do so for the benefit of the employer and encounter extraordinary risks incident to the travel
by virtue of being in unfamiliar surroundings, being required to deal with foreign language and
currency along with eating unfamiliar foods and seek lodging while “on the road”. There are
numerous potential extraordinary risks attendant to the performance of their duties while traveling
that are not faced by employees who are not required to travel. From the traditional perspective,
traveling employees are considered to be continually in employment status from the time they
leave home until their return with respect to potential recovery for injuries sustained.
To prevail on a traveling employee claim, the claimant must still satisfy the “arising out” prong
of the test. Historically, traveling employee cases in Illinois were decided by applying the
traditional risk analysis in order to determine whether the injury arose out of and in the course of
employment. However, the risk analysis in traveling employee cases has morphed into a question
of “reasonableness and foreseeability”: an injury sustained by a traveling employee will be deemed
to have arisen out of the employment if the employee engages in an activity at the time of injury
that is considered “reasonable” and might normally be anticipated or foreseen by the employer.
Recent case law has moved the traveling employee doctrine to a new and unprecedented expansion
of the judicially adopted exception. Where traditionally, traveling employees were employees
who faced extraordinary risks while traveling abroad or far away from their normal work, this new
doctrine expands the concept in a variety of new and unexpected ways. First, one becomes a
traveling employee when the worker does not work “on the premises of their employer.” Traveling
employee status is also extended to workers who work at two or more employer locations. The
23
following cases illustrate how Illinois courts have dramatically expanded the determination of who
qualifies for status as a traveling employee, finding a traveling employee is almost anyone whose job
requires “travel” by driving (even short distances) or walking in locations familiar to the employee.
Recent judicial expansion of the traveling employee doctrine has significant
implications for millions of Illinois workers for whom travel is “an essential
element of employment,” potentially expanding coverage of the Act on
a “continuous” basis for truckers, transportation workers of all types, the
construction industry and public safety employees with an exponential
increase of liability for private and public employers in Illinois.
The Venture-Newberg Perini Stone and Webster
v. Illinois Workers Compensation Commission,
2012 IL App (4th) 110847WC.
In Venture-Newberg, a divided Appellate Court ruled that an employee who voluntarily
chose to take a temporary job located over 200 miles from his home was a traveling
employee. Consequently, the injuries the employee sustained in an automobile accident on
the way to the worksite from the local motel where he spent the night were compensable.
The dissenting judges strenuously asserted that the majority expanded the definition of a
traveling employee beyond its intended scope. The Illinois Supreme Court recently agreed
to hear an appeal of this decision.
The employer was under contract to perform maintenance and repair work at a nuclear
power plant operated by the Exelon Corporation in Cordova, Illinois, approximately 200
miles from Springfield. At the time of the accident, the claimant, a union pipefitter, resided
in Springfield and was a member of Plumbers & Pipefitters Union Local 137, which was
based in Springfield. No jobs were available at the time within Local 137’s home territory.
Previously, the claimant had worked for the employer on four separate occasions between
2004 and 2006, for varying periods between two and six weeks. The claimant was laid off at
the end of each job and had to be rehired for each subsequent temporary position.
Another union local whose territory included the Cordova plant recruited pipefitters
for temporary positions with the employer for the Exelon contract. The positions were
anticipated to last only a few weeks. Tradesmen hired were expected to work between six
10-hour days and seven 12-hour days and could be called in on an emergency basis.
At the end of his first workday at the plant, the claimant and a co-worker spent the night at
24
a motel located 30 miles from the jobsite. The claimant was a passenger in his co-worker’s
truck and was seriously injured on the way to the jobsite the next morning when the truck
skidded on a patch of ice on an overpass.
At the arbitration hearing, the claimant acknowledged that the employer did not advise the
claimant to stay at the motel, did not pay the claimant for his travel time, or reimburse him
for his lodging. The claimant also stated that on the day of the accident, he had not been
instructed to arrive early for work, had not been called into work for an emergency and was
not on “on call status.” The arbitrator denied the employee’s claim for benefits because the
accident occurred while the claimant was commuting to work.
A divided Commission reversed the Arbitrator’s denial of benefits. The Commission
acknowledged that generally an accident occurring while an employee is traveling to
or from work is not considered one that arises out of or in the course of employment.
However, the Commission relied on previous case law to justify its conclusion that (1) the
claimant was in the course of employment while traveling to work because the course or
method of travel was determined by the demands or exigencies of the job, rather than by
the claimant’s personal preference as to where he chose to live and (2) the claimant was
a traveling employee. The Circuit Court for Sangamon County reversed the Commission’s
decision.
Appellate Court Review: The majority opinion in a 3-2 decision held that the following
facts of the case “indisputably” established the claimant as a traveling employee: (1) he was
employed by Venture-Newberg, (2) he was assigned to work at a plant in excess of 200
miles from his home and (3) the premises at which he was assigned to work were not the
premises of his employer.
The majority stated that the test of whether a traveling employee’s injury arose out of and
in the course of his employment is the reasonableness of the conduct in which he was
engaged at the time of his injury and whether the conduct might have been anticipated or
foreseen by the employer. According to the majority, the employer “must have anticipated”
the claimant would be required to travel and arrange for convenient lodging in order to
perform the duties of his job and it was reasonable and foreseeable he would travel a direct
route from the lodge at which he was staying to the worksite. The majority reinstated
the Commission’s award of benefits holding that the trial court erred in ruling that the
Commission’s decision was against the manifest weight of the evidence.
Appellate Court Dissent: Justice Hudson, joined by Justice Turner, asserted that the
Commission had misinterpreted the prior case law that it believed justified conferring
traveling employee status on the claimant because (1) the claimant voluntarily accepted
the job with the knowledge that the jobsite was located (at a fixed location) 200 miles from
his residence and that the job was temporary, and (2) none of the indicators of employer
control over the claimant’s decision to travel and how to effectuate his travel arrangements
that were integral to the exigency exception, were present in the record. The dissent also
25
contended that in a case where an employee is hired on a temporary basis only and is
assigned by the employer to work at one specific jobsite for the duration of the employment,
that location becomes the employer’s “premises.”
The Mlynarczyk and Kertis decisions, described below, are unanimous rulings handed down by the
Appellate Court within a year following the Venture-Newberg decision. Both cases further expand
applicability of traveling employee status, relying in part on the Venture-Newberg.
Mlynarczyk v. Illinois Workers Compensation Commission,
2013 IL App (3d)124011WC.
In Mlynarczyk, the claimant was employed by a janitorial service to clean churches, offices
and residences. The claimant’s husband also worked for the employer. His duties included
occasionally driving employees to cleaning jobs in a minivan provided by the employer.
On the day of the accident, the claimant finished her morning cleaning jobs and returned
home at approximately 2:30 p.m. Her next cleaning job was scheduled at 4:30 p.m. At
approximately 4:10 p.m. the claimant left her house to walk to the minivan which her
husband was warming up in the driveway of their residence. The claimant was injured when
she slipped on snow and ice while walking to the minivan. The claimant stated that she fell
on a “public sidewalk” adjacent to the driveway. The claimant’s husband testified that he did
not see the claimant fall, but he found her lying behind the van, which was parked in the
driveway.
The arbitrator found that the claimant sustained compensable injuries in the fall because she
was a traveling employee and the employer provided the claimant a means of transportation
to and from work for its own benefit.
The Commission disagreed with the arbitrator’s finding that the claimant was a traveling
employee and reversed the arbitrator’s award of benefits. The Commission stated that even
if the claimant was a traveling employee she had not satisfied her burden of showing her
injury arose out of and in the course of her employment. The Circuit Court of Will County
confirmed the Commission’s decision.
Appellate Court Review: On appeal, the claimant argued the Commission erred as a matter
of law in finding she was not a traveling employee and had not proved she sustained an
accidental injury arising out of and in the course of her employment.
26
The Appellate Court held that because the claimant did not work at a fixed job site and
her duties required her to travel to various locations “throughout the Chicago-land area,”
she qualified as a traveling employee. Accordingly, the claimant’s injuries occurred in the
course of her employment because traveling employees are deemed to be in the course of
employment from the time the employee leaves home until he or she returns.
As to whether the claimant’s injuries arose out of her employment, the Court held the
claimant’s “exposure to the hazards of the streets” was “by definition greater quantitatively”
than that of the general public, so long as her conduct at the time of injury was reasonable
and foreseeable to the employer. Per the Court, because the accident occurred as the
claimant was walking to the vehicle used to transport her to a work assignment, her walk
to the minivan “constituted the initial part of her journey to her work assignment” and the
possibility of an injury was reasonable and foreseeable.
The Court reversed the Commission’s denial of benefits as being against the manifest weight
of the evidence.
Kertis v. Illinois Workers Compensation Commission,
2013 IL App (2d) 120411WC.
In Kertis the claimant worked as a manager of two branch offices of the employer’s bank
and regularly traveled the 20 miles between the Hoffman Estates and St. Charles branch
offices to attend loan closings and perform other employment related tasks. The employer
did not provide parking for employees or customers at the St. Charles office. Employees
working at that office had to park on the street or in a public parking lot. The claimant
testified he consistently parked in a lot close to the St. Charles office. The claimant was
injured when he was walking toward the lot’s only entrance and stepped in a pothole as he
tried to avoid a car entering the lot.
The arbitrator denied the claim finding that although the claimant’s injury occurred during
the course of his employment because his job duties required him to travel to and from the
two bank locations, it did not arise out of the employment because the claimant failed to
establish he was exposed to the risk of falling in the parking lot to a greater degree than the
general public. The Commission and Circuit Court of Kane County confirmed the denial of
benefits.
Appellate Court Review: The Appellate Court stated that a “traveling employee is any
employee for whom travel is an essential element of his employment” and it was not
necessary for an individual “to be a traveling salesman or company representative who
27
covers a large geographic area in order to be considered a traveling employee.” The Court
found the claimant’s job duties required him to travel between the two bank branch offices,
thus, travel was “clearly an essential element” of the claimant’s job, rendering him a traveling
employee “as a matter of law.”
According to the Court, the Commission erred by applying the legal test applicable to nontraveling employees (greater exposure to neutral risk than the general public), rather than
“special rules” (reasonableness and foreseeability) applicable to traveling employees. The
Court concluded it was reasonable that the claimant would regularly park in a lot close
to the St. Charles office and it was foreseeable that he might fall in the parking lot while
walking to the office. Accordingly, the claimant’s injuries were compensable as arising out
of and in the course of his employment.
Cox v. Illinois Workers Compensation Commission
406 Ill. App. 3d 541, 941 N.E.2d 916, 347 Ill. Dec. 92 (1st Dist. 2010).
Another exception to the general rule that injuries sustained by an employee while
commuting to or from the workplace are not compensable applies when the employer,
for its own benefit, provides the employee with means of transportation to and from work.
Under these circumstances, the employee is considered to be in the course of employment
from the time he leaves for work until he returns home and injuries sustained during the
commute to and from work may be compensable as arising in the course of employment.
Notwithstanding, if the employee is engaged in a “personal deviation” from his employment
(by engaging in conduct outside of the scope of employment for the personal benefit of the
employee) when the accident occurs, the injury, as a general rule, will not be compensable.
Cox involved a claim for workers’ compensation benefits for injuries sustained by an
employee in a vehicular accident that occurred while he was driving a truck provided by his
employer to transport tools, equipment and supplies for use at job sites. The claimant had
possession of the employer’s truck 24/7 and drove it to and from work. At the time of the
accident, the claimant was on his way home to pick up his personal vehicle to drive to a
medical appointment. He stopped to withdraw money from a bank located just off his usual
route home. The accident occurred as he was leaving the bank.
The claimant testified he stopped at the bank to get money to buy a cooler to keep drinks
cold for his crew. He testified that he also withdrew money to pay carpenters who were
performing work on his residence. According to the claimant he owed the carpenters
$4,200. Bank records established that he withdrew $4,300 on the date of the accident.
28
The arbitrator denied benefits finding the claimant’s injuries did not arise out of and in the
course of his employment because the claimant was injured while engaged in a personal
deviation—stopping at a bank off of Route 12 to withdraw funds to pay for work being
done at his residence. The arbitrator found the claimant’s testimony that the purpose for
the stop was work-related lacked credibility. Additionally, the arbitrator specifically found
that although the accident occurred as the claimant was in the process of returning to
his regular route home, he had not yet returned to the northbound lanes of Route 12.
Consequently, he was still engaged in a personal deviation that removed him from the
course of his employment at the time of his injury.
The arbitrator’s denial of benefits was subsequently adopted by the Commission and
confirmed by the Circuit Court of Cook County.
Appellate Court Review: On appeal, the claimant argued the facts of the case established
that, at the time of the accident, he was a traveling employee operating a motor vehicle in a
foreseeable manner. Therefore, his injuries arose out of and in the course of his employment
and the Commission’s holding to the contrary was against the manifest weight of the
evidence.
The employer contended the Commission’s finding was that when the claimant left his route
home to stop at the bank, he was engaged in a personal deviation. This removed him from
the course of his employment at the time of the accident. This finding was supported by
the manifest weight of the evidence; thus, the Commission properly denied the requested
benefits under the Act.
The Appellate Court agreed that the claimant was a traveling employee because his
employer provided transportation the claimant used to drive to and from work. Additionally,
the claimant’s action in stopping at the bank on his way home was reasonable and could
have been anticipated by his employer.
The Court acknowledged the evidence was sufficient to support the inference that the
claimant went to the bank for personal reasons not connected to his work, however, the
claimant’s “slight deviation” of “several hundred feet” from his route home for personal
reasons was “insubstantial.” According to the Court, the “proper question was whether the
facts established the claimant was on his way home when he was injured.”
The Court concluded that at the time of the accident, the claimant had already made his bank
withdrawal and was on his way home. Accordingly, the claimant had re-entered the course
of his employment at the time of his injury and his claim for benefits was compensable.
29
Potenzo v. Illinois Workers Compensation Commission,
378 Ill. App. 3d 113, 881 N.E.2d 523, 317 Ill. Dec. 355 (1st Dist. 2007).
Generally, injuries sustained during an assault from an unknown assailant are considered a
“neutral risk” that is not incidental to the employment and is not considered to arise out of
the employment unless it can be proved that the employee’s exposure to the neutral risk is,
by virtue of the employment, greater than the general public’s exposure to the risk.
Potenzo involved a claim for workers’ compensation benefits for injuries sustained by a
truck driver employed by a large grocery store chain. The claimant was injured while he
was unloading a delivery at one of the employer’s stores in Chicago. The loading dock
was located behind the store in an alleyway between the store and a condominium and
was accessible to the public. The claimant stated that he was attacked from behind and
knocked unconscious.
The claimant testified he did not know who attacked him or why. None of the employer’s
property was missing from the trailer or truck. The claimant stated that after he regained
consciousness he was unable to locate his wedding ring or watch; however, he had no way
of knowing whether the items had been taken by his assailant.
The claimant testified he had seen a stabbing and theft from a truck in the store’s
neighborhood, and vagrants regularly hung around the vicinity of the loading dock.
Witnesses for the employer testified as to the lack of violence, criminal activity or security
problems in the area where the claimant was attacked.
The arbitrator denied the claim, holding the claimant failed to prove the injuries he sustained
from the attack arose out of his employment. The Commission adopted the arbitrator’s
finding and the Circuit Court of Cook County affirmed the denial of benefits.
Appellate Court Review: On appeal, the claimant argued the Commission’s finding that he
failed to prove his injuries arose out of his employment was against the manifest weight of
the evidence and the Commission had subjected him to an improper burden of proof.
The employer argued the Commission’s finding was not against the manifest weight of
the evidence because the risk of assault is a “street risk” which is compensable only if the
employee was exposed to the risk to a greater degree than the general public. The employer
pointed to the testimony in the record showing the area in which the loading dock was
located had not been the scene of any crimes or violence other than the alleged incident
involving the claimant.
The claimant argued that as a traveling employee, his employment exposed him to the
“special risk” of contact with street crime and violence to a greater degree than the general
30
public; therefore, he was not required to establish that the risk of being attacked was peculiar
to his employment. The Court agreed with the claimant and reversed the Commission’s
decision denying benefits as being against the manifest weight of the evidence.
Metropolitan Water Reclamation District of Greater Chicago v.
Illinois Workers Compensation Commission,
407 Ill. App. 3d 1010, 944 N.E.2d 800, 348 Ill. Dec. 559 (1st Dist. 2011).
In Metropolitan Water Reclamation District of Greater Chicago, the claimant’s duties required her
to make bank deposits two-to-three times per week at a bank located approximately three blocks
from the employer’s office. The claimant usually walked the same route (that she believed was the
most direct) from the office to the bank. She was injured on a trip to the bank when she stumbled
while walking up an inclined commercial driveway that intersected with a public sidewalk, which
had a “dip” of about six inches.
The arbitrator denied her request for benefits, finding that although the claimant was injured while
performing a task required by her job, the accident did not arise out of her employment because
she had not established that her job duties exposed her to a risk greater than that faced by the
general public.
The Commission in a 2-1 decision reversed the arbitrator’s decision and awarded benefits. The
Commission found the accidental fall arose out of the claimant’s employment because the claimant
had proven she had a greater exposure to the “dip” in the driveway than the general public because
her job subjected her to the hazard with greater frequency.
The Circuit Court of Cook County reversed the Commission’s award of benefits.
Appellate Court Review: On appeal, the Appellate Court stated it was undisputed that the claimant’s
injuries were sustained in the course of her employment. Thus, the sole issue was whether her
injuries arose out of her employment. According to the majority opinion, the risk that the claimant
would be injured as a result of a fall while traversing a public sidewalk and commercial driveway was
neutral in nature. The Court reiterated the general rule that injuries resulting from a neutral risk do
not arise out of the employment and are compensable only where the employee is exposed to the
risk to a greater degree than the general public.
Nonetheless, the Court reversed the lower court’s denial of benefits. The Court, relying on its
holding in Potenzo, stated that where the evidence establishes the employee is required to be on
the street to perform the employment duties, the “risks of the street become one of the risks of the
employment.” The Court went a step further, stating that in such circumstances, it is “presumed”
31
the claimant is exposed to risks of accidents in the street to a greater degree because of the
employment.
Justice Holdridge filed a special concurrence limiting his concurrence with the majority
opinion to its finding that the claimant met her burden of proof of exposure to a risk greater
than the general public because her job required her to use the sidewalk where the “dip” was
located two or three times every week. Justice Holdridge stated there was no need for the
majority to go further with the analysis and application of the “street risk” doctrine. Justice
Holdridge’s concurrence indicates that he was troubled by the majority’s pronouncement
that because an employee’s job placed him/her on the street there was a “presumption”
that all the hazards of the street became hazards of the employment.
COURT REJECTS 100 YEARS OF PRECEDENT FOR DETERMINING
PPD BENEFITS FOR SHOULDER INJURIES
Section 8(e) of the Act contains a schedule establishing permanent partial disability (PPD) benefits for
the physical loss or the permanent and complete loss of use of covered body parts. PPD benefits are
calculated based on a number of benefit weeks depending on the body part affected. Additionally,
section 8(e) provides that in cases where an employee experiences a subsequent injury to the same
body part, the award is reduced and the employer receives a credit in the amount awarded to the
claimant in connection with the previous injury.
The Commission has determined awards for PPD benefits for shoulder injuries for over 100 years
as a loss or loss of use of an arm under section 8(e)(10). Pursuant to section 8(e)(10), an employee
who suffers the physical loss of an arm or the permanent and complete loss of use of an arm is
compensated at 253 weeks. If the arm injury results in a partial loss of use, the percentage of loss
of use is reflected in the number of weeks awarded, e.g. 25% loss of use of an arm would result in
an award of 63.25 benefit weeks.
The Act also provides PPD benefits under its person as a whole provisions in section 8(d)(2). Section
8(d)(2) applies to serious and permanent injuries not covered by section 8(e), other injuries in
addition to an injury covered by section 8(e) that disable an employee from pursuing other suitable
occupations, and injuries which partially incapacitate an employee from pursuing the duties of his
usual and customary line of employment, but do not result in an impairment of earning capacity.
If an injury is treated as an injury to the person as a whole, the benefits are determined based on a
percentage of 500 weeks.
Commission decisions resulting in multiple awards to the same claimant for injuries to the same
body part, under the Act’s person as a whole provisions, have been upheld by the Appellate Court.
The Act’s person as a whole provisions do not establish any credit to the employer for previous
awards for injuries to the same body part.
32
Will County Forest Preserve District v. Illinois Workers
Compensation Commission,
2012 IL App (3d) 110077WC, 970 N.E.2d 16, 361 Ill. Dec. 16 (3d Dist. 2012).
In Will County, the Appellate Court deviated from 100 years of Commission precedent by
holding that a shoulder is not part of an arm and awarding permanent partial disability (PPD)
benefits under the Act’s “person as a whole” provisions instead. The Court’s decision in Will
County not only significantly increases PPD benefits for shoulder injuries, it also eliminates
potential credits available to an employer for prior and subsequent injuries to the shoulder
sustained by the same claimant.
Although the Appellate Court stated that Will County involves an issue of first impression
and its ruling significantly departed from 100 years of Commission precedent, it refused to
certify the matter as involving a substantial legal question warranting consideration by the
Illinois Supreme Court. Additionally, efforts to resolve the issue through legislative change
have been unsuccessful.
In Will County, the claimant worked as a heavy equipment operator for the employer
and sustained injuries to his right shoulder while performing his duties in June 2008. The
claimant underwent arthroscopic repair of his right rotator cuff and was released for full
duty and returned to work resuming all prior job activities. The claimant initially testified he
had never injured or had problems with his right arm prior to the June 2008 accident, but
subsequently acknowledged sustaining an injury at work in May of 2003, which required
surgery to his right elbow. The claimant negotiated a settlement with the employer for the
previous injury, which consisted of benefits under section 8(e) representing a 15% loss of
use of the right hand and 15% loss of use of the right arm.
At the arbitration hearing, the claimant contended he continued to experience some pain,
stiffness and weakness requiring him to switch to his left arm to perform his job functions.
The arbitrator found that in performing certain work activities the claimant “could only apply
the forces necessary with his left, non-dominant arm.” The arbitrator specifically noted that
the “mere fact the claimant’s injured body part happens to be one of those enumerated in
the section 8(e) schedule, does not deprive the Commission of its authority to award partial
disability to the whole person under section 8(d)(2).”
The arbitrator determined that a person as a whole award under section 8(d)(2) was
appropriate because the claimant sustained injuries that “partially incapacitated him from
pursuing the duties of his usual and customary line of employment, but did not result in
an impairment of earning capacity.” The Commission and the Circuit Court of Will County
confirmed the arbitrator’s decision.
33
Appellate Court Review: The employer argued on appeal the award of benefits under
section 8(d)(2) was erroneous because the Commission’s ruling that the claimant was
partially incapacitated from pursuing the duties of his usual and customary employment
was erroneous. The employer pointed to the record to establish that the claimant had
returned to work at full duty resuming all prior job activities, was not under any medical
restrictions and had not sought any additional treatment for his right shoulder.
The employer stated the Commission should have awarded the claimant benefits for a
scheduled loss to the right arm under section 8(e)(10) of the Act. The employer also stated
it was entitled to a credit under section 8(e) for the award the claimant received as a result
of settlement of his previous workers’ compensation claim for the injury to his right arm in
2003.
The Appellate Court agreed the Commission had erred in making an award based under the
subpart of section 8(d)(2) dealing with injuries that partially incapacitated an employee from
pursuing the duties of his usual and customary line of employment.
However, the Court went on to say that the employer’s argument that benefits should have
been awarded on a scheduled loss basis per section 8(e)(10) “assumed that an injury to the
shoulder is an injury to the arm.”
The Court stated that it had not previously considered the classification of a shoulder injury.
Whether an injury to the shoulder is an injury to the arm presented an issue of statutory
construction. Relying on dictionary definitions of “shoulder” and decisions rendered in
foreign jurisdictions, the Court determined that an injury to the shoulder is not an injury to
an arm and that section 8(e)(10) did not address benefits for loss of use of a shoulder.
The Court concluded, because Section 8(e)(10) did not address benefits for scheduled loss
of a shoulder that an award of benefits based on the person as a whole provisions under
section 8(d)(2) was appropriate.
WAGE DIFFERENTIAL AWARDS NOT REDUCED DESPITE
INCREASED EARNINGS
Section 8(d)(1) of the Act provides for wage differential benefits when an injury renders the employee
partially incapacitated from pursuing his usual and customary line of employment. The wage
differential award is equal to 662⁄3 of the difference between the average amount the employee
would be able to earn in the full performance of his duties in the occupation in which he was
engaged at the time of the accident and the average amount he is earning or is able to earn in some
suitable employment or business after the accident. Section 8(d)(1) provides that the employee
shall receive the compensation “for the duration of his disability.” The 2011 changes to the Act
in P.A. 97-18 limited the duration of a wage differential award to the later of when the employee
34
reaches age 67 or five years after the award. Previously, the duration of wage differential awards
was based on the life expectancy of the injured worker.
Appellate Court precedent holds that wage differential benefits may not be reduced, regardless
of increased earnings unless the physical “disability” causing the initial wage discrepancy changes.
This legal theory potentially allows an injured worker to significantly increase the wages he was
making when injured and still be entitled to the full amount of wage differential benefits for the
entire statutory period the employer is required to pay the award.
Cassens Transport Company v. The Industrial Commission,
218 Ill. 2d 519, 844 N.E.2d 414, 300 Ill. Dec. 416 (2006).
In Cassens the Illinois Supreme Court used a strict construction analysis in ruling that without
legislative action, the Commission did not have jurisdiction to reopen a wage differential
award ten years after the award was made even if the claimant’s earnings have returned to,
or exceed, his pre-accident level of earnings.
In 1993 the claimant received a wage differential award as compensation for work-related
injuries to his left hand. In 2003 the employer filed a motion with the Commission to suspend
wage differential benefits on the ground that the claimant’s income tax returns showed that
beginning in 2002, the claimant’s wages matched the wages he had been earning at the
time of his injury. The employer argued in support of its motion that the wage discrepancy
giving rise to the wage differential award under section 8(d)(1) no longer existed.
The Commission denied the motion relying on Appellate Court precedent holding the
employer had not alleged that there was a change in the claimant’s physical condition and
the phrase in section 8(d)(1) “for the duration of his disability” referred to the duration of the
employee’s physical disability, not the duration of an economic loss. The Circuit Court of
Coles County denied the employer’s motion to overturn the Commission’s decision, finding
that the Act did not give the Commission or the Court jurisdiction to entertain the motion.
Appellate Court Review: The Appellate Court agreed with the trial court that the Commission
did not have jurisdiction to review the award, relying on section 19(h) of the Act, which
requires that requests for review of an installment award based on a change in disability
be filed within 30 (now 60) months of the date of an award. The Court also rejected the
employer’s argument that the definition of disability in section 8(d)(1) includes economic
loss.
Illinois Supreme Court Review: The Illinois Supreme Court noted that the case was one
of first impression and presented the threshold question of whether the Commission has
jurisdiction to reopen or modify a 10-year old wage differential award.
35
On appeal the employer argued that section 8(d)(1) grants extended jurisdiction by allowing
an employee to receive compensation “for the duration of his disability” and that the use of
this phrase suggested that the Commission may modify an award whenever a disability no
longer exists. The Supreme Court rejected this assertion and stated that the Act specifies
only two instances where the Commission may modify a final award. Under section 19(f),
the Commission has limited ability to correct clerical errors in the calculation of an award.
Under section 19(h) the Commission has authority to review an installment award within
30 (now 60) months of its entry when a party alleges that the employee’s disability has
recurred, increased, diminished or ended.
The employer then pointed to section 8(f) of the Act, which authorizes the reassessment
of any award for total and permanent disability and provides for modification by the
Commission if the employee receiving the award returns to work or is able to do so and
earns or is able to earn as much as before the accident. The employer argued that section
8(f) implies that a review proceeding would also be appropriate for permanent partial
disability awards under section 8(d)(1). The Court dismissed the employer’s argument by
holding that the language of section 8(f) which gives the Commission ongoing jurisdiction
to determine whether a total and permanent disability continues to exist, shows that the
legislature could have similarly authorized ongoing review of permanent partial disability
awards, if it had intended to do so.
ODD-LOT DOCTRINE: JUDICIAL DOCTRINE SHIFTS BURDEN OF PROOF
TO EMPLOYER IN PERMANENT TOTAL DISABILITY CLAIMS
Section 8(f) of the Act provides lifetime benefits for workplace injuries resulting in permanent total
disability (PTD). Under Section 8(f) employees with work-related injuries that result in “complete
disability” rendering them “wholly and permanently incapable of work” receive compensation
equaling 66 2⁄3 of their average weekly wage for life. The only specific injuries identified in the Act
as permanent and total disabilities are the loss of (or loss of use of) both, or any two of, the hands,
arms, legs, or eyes.
Liberal judicial interpretation of the plain wording of section 8(f) has established two broad principles:
(1) the claimants for PTD benefits do not have to show that their work-related injury has resulted in
inability to work based on total physical incapacity; and (2) for the purposes of section 8(f), a person
is permanently and totally disabled when, due to the work-related injury, he or she cannot perform
any services except those so limited in nature that there is no reasonably stable labor market.
The already expansive interpretation of section 8(f) was further liberalized when the Illinois judiciary
adopted the “odd-lot” doctrine in the late 1970’s. The “odd-lot” doctrine has no basis in Illinois
statute. It operates where an employee’s disability is limited in nature; and therefore, the claimant
is capable of employment. However, when the injury or disability is considered in conjunction with
36
personal limitations of the claimant, such as age, education, limited job experience, etc., the only
employment available to the claimant is limited or menial services for which there is no stable job
market.
Prior to the judiciary’s adoption of the odd-lot doctrine, the burden of proof in establishing
compensability in PTD claims rested with the claimant and required a preponderance of evidence
showing that the claimant was either totally incapacitated from gainful employment through
medical evidence, or that adequate and continuing employment was not available to a person in
the claimant’s circumstances, taking into account the disability, and other factors personal to the
claimant, such as age, training, education and experience.
The adoption of the “odd-lot” doctrine by the Illinois judiciary significantly changed the burden of
proof in adjudicating workers’ compensation claims for work-related permanent and total disability.
The claimant bears the initial burden of showing that he/she falls into the odd-lot category. The
burden may be met by showing of diligent but unsuccessful attempts to find work or by showing
the claimant is unable to perform any service for which there is a reasonably stable market. If the
claimant makes the required showing, the burden shifts to the employer to show that the claimant
is not only employable, but some kind of suitable work is regularly and continuously available to
the claimant.
The justification offered for shifting the burden to the employer is cited by the majority in the Moore
case below: “Placing this burden on the employer is justified because it is easier for the employer,
by virtue of its contact with the labor market, to prove the claimant’s employability than it is for
employee to attempt to prove the ‘universal negative’ of being totally unemployable.”
E.R. Moore Co. v. The Industrial Commission,
71 Ill. 2d 353, 376 N.E.2d 206, 17 Ill. Dec. 207 (1978).
In Moore the 58-year old claimant worked as a garment presser in the employer’s cap and
gown rental business. Previously, she had worked off and on for 15 years at various cleaning
jobs and as a hotel maid. The claimant was injured when a washing machine filled with drycleaning solution overflowed, splashing chemical solution on her feet and legs, resulting
in contact dermatitis which spread to her arms and other parts of her body. The claimant’s
treating physician prescribed medication and instructed her not to return to work until the
condition cleared. When the claimant returned to work, the dermatitis reoccurred and she
subsequently quit her job with the employer.
At the arbitration hearing, the claimant’s physician testified that her exposure to the drycleaning solution had decreased the resistance of claimant’s skin to other less toxic irritants.
Thus, she should avoid working at any job that would involve the use of detergents and
cleaning solvents containing active chemical agents or run the risk of reactivating the
dermatitis. The physician suggested that considering claimant’s age and her sensitivity to
active chemical agents, there were very few jobs that the claimant could perform without
37
risking her health. Based on this evidence the arbitrator awarded the claimant total and
permanent disability compensation.
On review before the Commission, the employer’s medical expert testified that as long as
the claimant avoided the offending substance, the dermatitis should clear and she should
experience no further difficulty. The claimant testified that since leaving the respondent’s
employ she had submitted applications at two factories and had continued to look for
employment, but had been unable to find employment. Under questioning by her own
counsel, the claimant stated the two prospective employers had asked only about her age;
she was not called back for work; and she did not know if the work she applied for involved
use of solvents. The Commission affirmed the arbitrator’s award of PTD benefits.
On review before the Cook County Circuit Court, the employer argued the claimant failed
to prove she was unable to work, stating there was no testimony in the record showing
the claimant’s inability to find work was attributable to her disability. The Circuit Court
remanded the case to the Commission for taking of further evidence concerning the
claimant’s inability to work. The claimant’s counsel stated no further evidence could be
produced and the Circuit Court reversed the Commission’s award of PTD benefits.
Illinois Supreme Court Review: The Claimant argued that considering the nature of her
disability, age and limited work experience, there was no reasonably stable market for her
services. The employer contended that because the claimant would remain healthy as
long as she avoided contact with various irritants, she could not be considered totally and
permanently disabled for the purposes of Section 8(f). Additionally, the claimant had not
provided any evidence that she was unable to work or that her disability prevented her from
obtaining suitable employment.
A divided Illinois Supreme Court relied on decisions from foreign jurisdictions in holding that
the Commission’s determination that the claimant suffered a medical disability because her
skin was permanently sensitized to various chemical compounds as the result of her workrelated accident was supported by medical testimony. The Court stated that in determining
permanent medical disability, the degree of the disability is dependent upon the extent to
which medical disability has impaired employee’s earning capacity or ability to work.
According to the Court, when the nature or extent of the disability, coupled with personal
factors indicates an injured employee cannot perform any services except those for which
no reasonably stable labor market exists, the claimant falls into the “odd-lot” category”.
Based on this determination, the Commission may enter an award for permanent and total
disability “despite the employee’s failure to show that work was not available.”
The majority, relying on the discussion of the odd-lot doctrine in Professor Larson’s workers’
compensation treatise, held that when the employee had made the requisite showing, it
was “incumbent upon the employer to come forward with evidence to show not only that
38
the employee is capable of engaging in some type of regular and continuous employment,
but that such employment is reasonably available.”
The Illinois Supreme Court reversed the Cook County Circuit Court’s decision and reinstated
the Commission’s award of permanent and total disability benefits.
Supreme Court Dissent: Justice Ryan, joined by Justice Underwood, dissented, arguing
that the claimant did not present enough evidence, medical or otherwise to sustain a
finding of permanent disability. Further, according to the dissenting justices, shifting of the
burden of proof to the employer, “which the majority espoused,” comes about only after
the employee has established that her condition is such that she is unable to perform any
services for which there is a reasonably stable market.
The dissenting justices concluded the claimant had only proved that she had dermatitis that
flared up on exposure to certain irritants and that she applied for work at two factories in a
job market area as diversified as Cook County. Accordingly, the claimant had not made the
requisite showing necessary to shift the burden to the employer of proving that adequate
work for which the clamant was qualified was available.
APPELLATE COURT RELAXES MENTAL-MENTAL STANDARD
The Illinois Supreme Court’s seminal decision in Pathfinder Co. v. Illinois Industrial Commission,
62 Ill. 2d 556, 343 N.E.2d 913, (1976). Established compensability for psychological work-related
injuries where the claimant had sustained no physical injury (“mental-mental” injuries).
In Pathfinder the claimant pulled a co-worker’s severed hand from a machine, fainted, and
subsequently suffered psychological problems. In upholding the Commission’s award of workers’
compensation benefits for purely psychological injuries, the Illinois Supreme Court stated the
claimant experienced a “sudden, severe emotional shock” as a result of the incident, which should
be compensable in and of itself. The Court determined the claimant had sufficiently proved
objective symptoms of actual injury through the introduction of hospital records showing that
she was suffering from a nervous condition upon admission and received sedating drugs while
hospitalized.
Subsequent Appellate Court decisions in mental-mental claims for workers’ compensation benefits
applied the narrow test pronounced in Pathfinder. In General Motors Parts Division v. Illinois
Industrial Commission, 168 Ill. App. 3d 678, 522 N.E.2d 1260, 119 Ill. Dec. 401 (1988), the Appellate
Court refined Pathfinder’s requirement of “a sudden, severe emotional shock” for proving mentalmental injuries, by adding the shock must result in an “immediately apparent psychic injury” and
must “be precipitated by an uncommon event of significantly greater proportion or dimension than
that to which the employee would otherwise be subjected in the normal course of employment.”
Two very recent decisions signal the Appellate Court’s departure from the narrow Pathfinder
standard in awarding workers’ compensation benefits for mental-mental injury claims.
39
Chicago Transit Authority v. Illinois Workers Compensation Commission,
2013 IL App (1st) 120253WC.
In Chicago Transit Authority the Appellate Court ruled (4-1) the claimant suffered a sudden,
severe emotional shock when the Chicago Transit Authority (CTA) bus she was driving
struck and killed a pedestrian, even though the claimant did not seek treatment for over
two months after the accident.
The accident occurred in March 2010. The claimant testified she did not see the bus hit the
victim; she was made aware of the accident when a passenger in the rear of the bus yelled
that the bus had hit a pedestrian. The claimant stopped the bus, got off and saw a man
lying in the street. The accident victim was removed from the scene by ambulance and the
claimant remained at the accident scene for approximately four hours, speaking with the
police and various CTA supervisors.
The claimant had returned to the CTA garage and prepared an accident report when she
learned that the victim had died. The claimant testified she recalled feeling “shaken” and “a
little depressed” after hearing of his death. She said her supervisor saw that she was “shaken
up” and referred her to the employer’s provider of employee assistance program services.
The claimant was subsequently discharged from her employment in April 2010.
The claimant testified that after the accident she had flashbacks of the victim lying in the
street and had difficulty sleeping. She did not seek professional treatment until late May
2010. The claimant’s clinical psychologist noted that she experienced severe levels of
depressive and anxiety symptoms and was unable to work due to psychological trauma
from the accident.
The arbitrator determined that despite the claimant’s delay in seeking treatment, she
had proven she sustained psychological injuries arising out of and in the course of her
employment in that she suffered a sudden, severe emotional shock traceable to a definite
time, place and cause. The Commission affirmed the arbitrator’s decision 3-2. The
dissenting commissioner found that the claimant failed to prove the immediate onset of an
emotional injury as a result of the accident. The Circuit Court of Cook County confirmed
the Commission’s decision.
Appellate Court Review: On appeal the employer cited the Appellate Court’s ruling in
General Motors in support of its argument that to prevail under Pathfinder, a claimant
must prove that a sudden, severe emotional shock resulted in a “psychic injury” that was
“immediately apparent.”
The employer asserted that the only question to be considered by the Court was whether
the undisputed facts satisfied the legal requirements for proving a compensable mental-
40
mental injury. Thus, the case involved a question of law subject to de novo review. The
claimant argued there was a dispute as to the inferences to be drawn from the undisputed
facts. Therefore, the Commission’s decision should not be disturbed unless it was against
the manifest weight of the evidence. The majority agreed with the claimant.
In a 4-1 decision, the majority distinguished General Motors because it involved a claim
of psychological injuries that appeared to have arisen gradually, over a long period of
time from non-traumatic work-related and non-work-related causes. The majority
specifically rejected General Motors to the extent it required the resulting psychological
injury be “immediately apparent” in order to be compensable. The majority stated it was
not expanding the Illinois Supreme Court’s holding in Pathfinder; rather it was “merely
applying Pathfinder as our Supreme Court intended without imposing any unnecessary or
unwarranted limitations on its holding.”
The majority concluded that the claimant presented evidence, which supported a reasonable
inference that, as a result of the accident, she suffered a “sudden, severe emotional
shock” which caused a psychological injury, as required by Pathfinder. Additionally, the
Commission’s finding that the claimant’s delay in obtaining medical treatment was not a bar
to recovery given her credible testimony and the unrebutted opinion of the psychologist
treating the claimant, was not against the manifest weight of the evidence.
Appellate Court Dissent: Justice Turner dissented, pointing to the Court’s previous holdings
emphasizing the limited nature of compensable mental-mental injury cases and noting that
General Motors’ interpretation of Pathfinder had stood as precedential authority for almost
25 years.
Justice Turner also disagreed with the Court’s refusal to apply a de novo standard of review,
stating that the majority should have not even reached the issue of the validity of the General
Motors’ interpretation of Pathfinder because the undisputed facts, and the only reasonable
inference, did not show that the claimant suffered a sudden, severe emotional shock as
contemplated by Pathfinder, given the claimant’s own description of her reaction to the
accident and her delay in seeking treatment.
Diaz v. Illinois Workers Compensation Commission,
2013 IL App (2d) 120294WC.
In Diaz, one month after the decision in Chicago Transit Authority, the Appellate Court (4-1)
reversed a Commission decision denying compensation to a police officer for posttraumatic
stress disorder allegedly resulting when he was confronted by an individual with a toy gun
while responding to a neighborhood disturbance call.
41
The claimant in Diaz had been a police officer for three years at the time of the May 29, 2007
incident causing his injury. He testified the incident occurred while he was responding to a
“disturbance between neighbors” call. A neighbor, who was not involved in the disturbance,
became upset because police squad cars were blocking his driveway. He went into his house
and came out holding what appeared to be a handgun. The claimant drew his weapon and
commanded the neighbor to drop the gun. The individual did not comply and continued
to walk toward the claimant and another officer. The claimant stated that 10 to 15 seconds
elapsed from time he saw the gun until he realized it was a BB gun or some type of toy.
The claimant testified that he did not immediately experience anxiety after the incident; he
was just “wound up.” He went to work the next day and did not experience any symptoms
of anxiety. However, on June 1 (three days after the incident), the claimant experienced
symptoms of blurred vision, dizziness, heart palpitations, sweating and nervousness. The
claimant reported his symptoms to his supervisor and was taken to a hospital based on a
concern he might be having a heart attack.
On June 5 the claimant was diagnosed with posttraumatic stress disorder and commenced
treatment with medication and counseling. The claimant testified that although he attempted
to continue working, he suffered from multiple “panic attacks” and was overwhelmed by
anxiety. He reported flashbacks from the recent incident, as well as an incident two years
earlier in which he witnessed the shooting by fellow officers of a man threatening the chief
of police with a machete and knife.
On August 21 the claimant underwent a fitness-for-duty evaluation at the request of his
employer. Examiners found him unfit for duty as a police officer because he was emotionally
overwhelmed and plagued by significant anxiety and depressive issues, consistent with
posttraumatic stress symptoms. The claimant was on paid leave until October 2007 when a
subsequent fitness evaluation concluded that he was fit for duty, but that he should continue
consulting with his doctors for medication management and handling of charged or stressful
situations.
The claimant testified he had never previously experienced the level of anxiety or depression
he suffered after the May 2007 incident, nor had he received psychiatric care. The claimant
also testified he was trained in weapons handling including how to deal with armed individuals.
The arbitrator determined the claimant sustained injuries arising out of and in the course of
his employment and awarded benefits.
The Commission reversed the arbitrator’s decision 2-1, holding that the claimant failed to
prove he sustained compensable injuries. The Circuit Court of Kane County confirmed the
Commission’s denial of benefits.
The Commission stated it had adopted a “narrower construction of Pathfinder as expressed
in the General Motors” decision requiring that an “immediately apparent psychic injury” be
precipitated “by an uncommon event of significantly greater proportion or dimension than
42
the employee would otherwise be subjected to in the normal course of employment.” The
Commission noted the claimant was a police officer, trained in weapons and in how to
handle encounters with subjects who are considered armed and dangerous. Additionally, the
Commission concluded that while the claimant encountered a dangerous and precarious
situation, it was not “an uncommon event of significantly greater proportion than what he
would otherwise be subjected to in the normal course of his employment.”
Appellate Court Review: On appeal, the claimant argued that, as a police officer, he was
improperly held to a higher standard of proof than workers in other occupations.
As in Chicago Transit Authority, the parties differed as to the appropriate standard of review.
The claimant asserted the only question was the application of the law to the undisputed
facts and, therefore, the Commission’s decision should be reviewed de novo and set aside.
The employer countered that the manifest weight of the evidence standard applied and the
Commission’s denial of benefits should be affirmed.
The majority agreed with the claimant that a de novo standard applied because the only
issue was whether the Commission’s decision was contrary to law because it held the
claimant to a unique standard of “severe emotional shock” not otherwise applicable to
employees in other lines of work.
The majority held that “Pathfinder did not require the requisite ‘sudden, severe emotional
shock’ be considered within the context of a claimant’s occupation or training.” According
to the majority, the question of whether a worker suffered the type of emotional shock
sufficient to warrant recovery for a psychological injury should be determined by an
objective, reasonable person standard, rather than a subjective standard that takes into
account the claimant’s occupation and training.
The majority acknowledged that a “literal reading of General Motors, taken out of context,
would result in a narrower construction of the Pathfinder standard.” However, the majority
specifically rejected General Motors and “declined to follow it” to the extent it would
require in a mental-mental claim “that the precipitating event be viewed in the context
of the claimant’s occupation and training.” The Court reversed the Commission’s denial
of benefits, holding that the Commission erred as a matter of law in applying an incorrect
burden of proof to the claimant.
Appellate Court Dissent: Justice Turner’s dissent largely echoed his dissent in Chicago
Transit Authority. He contended that General Motors was a fair interpretation of the Illinois
Supreme Court’s decision in Pathfinder, reasoning that the claimant’s occupation and
training were part of the circumstances that must be considered in determining whether an
event causing a sudden, severe shock has occurred.
Justice Turner asserted that “even if the Commission overemphasized the claimant’s
employment as a police officer,” the majority should not even reach the issue of the validity
of General Motors’ interpretation of Pathfinder, because the undisputed facts showed
43
the claimant did not suffer a sudden, severe emotional shock as contemplated by Illinois
Supreme Court in Pathfinder.
Justice Turner agreed the de novo review standard adopted by the majority in Diaz was
correct and stated it should also have been the standard applied in Chicago Transit Authority,
rather than the manifest weight of evidence standard. Justice Turner stated that the majority
offered no “coherent explanation justifying the use of inconsistent standards in these two
cases.”
EMPLOYEE DISCHARGE IRRELEVANT TO OBLIGATION TO PAY TOTAL
TEMPORARY DISABILITY BENEFITS
Section 8(b) of the Act provides that weekly compensation for total temporary disability (TTD) is
to be paid to an employee as long as the total temporary incapacity lasts. The Appellate Court has
interpreted this to mean that an employee is temporarily totally incapacitated from the time an
injury incapacitates him for work until he is released by the treating physician to return to full work
activity or his condition has improved as much as the nature of the injury permits. TTD benefits may
also be discontinued if the employee has been released to restricted or modified work duties and
the employer is able to offer work duties falling within the specified restrictions.
The Commission may suspend or terminate TTD benefits if the employee refuses to submit to
medical, surgical or hospital treatment essential to his recovery or if the employee fails to cooperate
in good faith with rehabilitation efforts. Benefits may also be suspended or terminated if the
employee refuses work falling within the physical restrictions prescribed by his doctor.
A recent Illinois Supreme Court decision held the employer’s obligation to provide TTD benefits
does not end when an injured employee is discharged by the employer prior to the time his medical
condition has stabilized.
Interstate Scaffolding, Inc. v. Illinois Workers Compensation Commission,
236 Ill. 2d 136, 923 N.E.2d 266, 337 Ill. Dec. 707 (2010).
In Interstate Scaffolding the Illinois Supreme Court ruled that an employer’s obligation
to pay total temporary disability (TTD) benefits should continue after termination of the
employee for cause, for conduct unrelated to the injury, until the employee’s medical
condition has stabilized. Using a strict construction analysis the Court held that the Act
contains no provision for the denial, suspension or termination of TTD benefits as a result
of an injured employee’s discharge by his employer.
44
The claimant was employed as a union carpenter and sustained injuries to his head, neck
and back in a work-related accident on July 2, 2003. The claimant worked intermittently
during the period 2003-2005 due to continued headaches, cervical pain and numbness in
his arms. At times his doctor required him to remain off work; at other times, the claimant
was able to work “light duty” with restrictions ordered by his doctor. The employer paid TTD
benefits for all periods when the claimant’s doctor ordered him not to work. On May 25,
2005, the claimant was discharged for defacement of the employer’s property. Following
the discharge, the employer refused to continue to pay TTD benefits to the claimant.
The claimant subsequently filed an application for benefits and a hearing was held on June
28, 2005. Testimony was taken regarding the accident and resulting diagnoses, medications
and treatments from the date of injury through the date of the hearing. The claimant alleged
he was still experiencing considerable pain from his injuries. The claimant also admitted he
had written religious slogans in the storage room at the employer’s facility, but stated he did
not believe that was the reason he was discharged. The arbitrator determined the claimant
was not entitled to TTD benefits subsequent to his May 25, 2005 termination.
On review, the Commission modified the arbitrator’s decision, finding that because
the claimant’s condition had not stabilized as of the June 28 hearing, he was entitled
to TTD benefits and interest for the five-week period between his termination and the
arbitration hearing. No findings were made by the arbitrator or the Commission regarding
the claimant’s discharge. The Circuit Court of Will County confirmed the Commission’s
decision terminating TTD benefits after June 28, 2005.
Appellate Court Review: In a 3-2 decision, the majority agreed there was sufficient evidence
to support the Commission’s finding that the claimant’s condition had not stabilized.
Nonetheless, the majority ruled that an employer may cease paying TTD benefits if the
injured employee commits a volitional act of misconduct that serves as justification for his
termination. Accordingly, the claimant was not entitled to TTD benefits after his termination
on May 25, 2005.
The majority determined that the critical inquiry was whether the employee’s removal
from the workforce was a result of volitional conduct unrelated to his injury. The majority
stated that allowing an employee to collect TTD benefits from his employer after he was
removed from the workforce as a result of volitional conduct unrelated to his injury would
not advance the goal of compensating an employee for a work-related injury.
Appellate Court Dissent: Justices Donovan and Holdridge dissented, stating it was possible
that an employee’s TTD benefits could be discontinued following a discharge for cause.
However, they disagreed with the majority’s outright reversal of the Commission’s decision.
Illinois Supreme Court Review: The Illinois Supreme Court disagreed with both the majority
and the dissenting justices. Applying a strict construction analysis, the Court concluded
there were no provisions in the Act for the denial, suspension or termination of TTD benefits
45
as a result of an employee’s discharge by his employer. Furthermore, the basis for the
discharge was irrelevant to determining whether TTD benefits could be discontinued. The
only question to be resolved according to the Court was whether the claimant’s condition
had stabilized at the time the employer terminated TTD benefits.
The Court reiterated its longstanding proposition that the Act is remedial and should be
liberally construed to effectuate its main purpose—to provide financial protection for
injured workers and that to deny TTD benefits to an injured employee whose condition had
not stabilized because he had been discharged would not further the purpose of the Act.
NO RELIEF FOR EMPLOYERS FOR INJURIES RESULTING FROM
WORKPLACE SAFETY VIOLATIONS
The move to a statutory workers’ compensation system also encouraged safety protocols, as the
impact of an unsafe workplace would much more rapidly impact employers. Penalties for employers
who fail to protect the safety of their employees provide an incentive for employers to comply
with workplace safety laws. An additional incentive for employers is that prevention of workplace
injuries, through appropriate safety programs, presents a tangible opportunity for employers to
reduce their workers’ compensation insurance premium costs.
Indiana and Missouri are among several states that limit or deny workers’ compensation benefits
for workplace injuries resulting from a violation of work safety rules. Indiana denies compensation
for an injury or death resulting from an employee’s knowing failure to use a safety appliance or
knowing failure to obey posted workplace safety rules. Missouri law provides that where the injury
is caused by the failure of the employee to use safety devices when provided by the employer, or
failure to obey reasonable rules adopted by the employer for the safety of employees, workers’
compensation or death benefits are subject to reduction by at least 25%, but not more than 50%.
As illustrated in the next decision, Illinois courts have consistently refused to deny benefits in such
cases holding that to do so would be inconsistent with the purpose of the Act. The 2012 Oregon
report ranked Indiana 50th and Missouri 36th, as compared to Illinois’ ranking as having the 4th
highest workers’ compensation insurance premium costs.
46
J.S. Masonry, Inc. v. The Industrial Commission,
369 Ill. App. 3d 591, 861 N.E.2d 202, 308 Ill. Dec. 137 (1st Dist. 2006).
In J.S. Masonry the claimant had been employed as a bricklayer’s helper for approximately
one year. His primary duty was to relay bricks, blocks and mortar to the bricklayers at the
worksite and to assist in constructing any scaffolding. On June 10, 2002, the claimant
sustained injuries when he fell from a scaffold. At the time of the accident, the safety gate
on the scaffold was not fastened.
The employer and co-workers of the claimant testified at the arbitration hearing that the
claimant had been reminded to fasten the safety gate several times on the day of the
accident. The owner testified that it is the responsibility of the bricklayer’s helper to unfasten
the gate when a load of bricks is delivered to the scaffold and refasten the gate after the
load has been lifted into position. The owner admitted that the company had no written
rules regarding scaffold construction or the use of a safety gate.
The arbitrator denied the claim, finding the claimant failed to prove the injuries he sustained
in the accident arose out of and in the course of his employment because the claimant’s
violation of the company’s safety rules took him out of the scope of his employment. The
Commission reversed the arbitrator’s decision finding that regardless of whether or not the
company had a safety rule and/or the claimant violated the rule, the injuries the claimant
sustained arose out of and in the course of his employment. The Commission awarded
temporary total disability benefits and medical expenses. The Circuit Court of Cook County
confirmed the Commission’s decision.
Appellate Court Review: On appeal, the employer argued the Commission erred as a matter
of law in finding the claimant’s injuries arose out of his employment because the claimant’s
failure to fasten the safety gate was a violation of the company’s rules, taking him out of the
scope of his employment.
The Appellate Court disagreed and stated that the decisive issue was whether the employee
was, at the time of the accident, violating a rule while still in the scope of his employment,
or whether the alleged rule violation took him outside its sphere.
The Court concluded that the record established that when the accident occurred, the
claimant was performing the duties for which he was hired. Therefore, he was acting
within the sphere of his employment and his injuries arose out of and in the course of his
employment, without regard to whether he had violated a company rule by failing to secure
the safety gate.
47
PERSONAL COMFORT AND GOOD SAMARITAN DOCTRINES
EXPAND COMPENSABILITY
The “personal comfort doctrine” stands for the proposition that workplace injuries received while
an employee is engaged in conduct reasonably necessary to the employee’s health and comfort
(e.g. meal and rest breaks, bathroom or personal hygiene activities, etc.), are considered incidental
to the employment. Even though they are personal to the employee, they have been held to occur
in the course of employment unless the employee’s conduct giving rise to the injury is extremely
unreasonable. The personal comfort doctrine does not address the “arising out of employment”
requirement, which must be met independently.
The “Good Samaritan doctrine” has been applied to find compensability in cases where an
employee was injured while engaged in conduct outside the scope of employment in order to
provide assistance to another person. Good Samaritan cases have typically arisen in the context
of an emergency or urgent situation. This has been true in Illinois case law applying the Good
Samaritan doctrine to find compensability where employees sustained injuries when stopping to
assist a family in a stalled automobile in subzero temperatures; in picking up an injured child from
an accident scene; and in jumping into Lake Michigan to assist a man who had fallen into the lake.
In Good Samaritan cases, the test employed to determine compensability has been whether it is
foreseeable by the employer that the employee, when faced with an emergency situation, would
leave the scope of his duties to provide assistance to a third party, and whether the employee’s
actions in providing assistance are reasonable.
Circuit City Stores v. Illinois Workers Compensation Commission,
391 Ill. App. 3d 913, 909 N.E.2d 983, 330 Ill. Dec. 961 (2d Dist. 2009).
In Circuit City injuries sustained by an employee from butting a vending machine with
his shoulder to dislodge a bag of chips at the request of a co-worker was held to be
compensable because the Good Samaritan doctrine applied.
The claimant in Circuit City installed stereo equipment in automobiles for the employer and
was working on an installation when a co-worker requested his assistance in dislodging a
bag of chips from a vending machine. The claimant stopped working and accompanied his
co-worker to the employee break room. The claimant was not on lunch or break.
The claimant testified that he shook the machine and nothing happened. He then tried
to dislodge the chips by hitting the machine with his shoulder and his hip “followed.” The
claimant was treated for a fractured hip. Medical records submitted into evidence indicated
that the claimant had a pre-existing condition, which may have made his hip more
susceptible to injury.
48
The Arbitrator awarded benefits, relying on the personal comfort doctrine in finding that
the claimant’s injuries arose out of and in the course of his employment even though the
decision stated that “the facts do not squarely fit within the personal comfort doctrine.”
The Commission (with one dissenting member) approved the arbitrator’s decision. The
dissenting commissioner argued the personal comfort doctrine did not apply because the
claimant was not on break and seeking his own comfort. Further, even assuming that the
doctrine covers third parties, the claimant’s actions were unreasonable and unforeseeable.
The Circuit Court for McHenry County agreed with the dissenting commissioner’s position
and reversed the Commission’s decision awarding benefits.
Appellate Court Review: A unanimous Appellate Court held the Commission’s finding –
that the claimant’s injury was compensable under the personal comfort doctrine – was
contrary to law because the personal comfort doctrine applied to employees injured while
seeking their own personal comfort, not to injuries sustained by employees while assisting
a third party who is seeking personal comfort. The Court stated that it was not necessary to
“belabor this point” because the “Good Samaritan doctrine” was applicable instead.
The Court reviewed several decisions in which the Illinois Appellate Court applied the
Good Samaritan doctrine in determining that injuries sustained by employees who left their
scope of employment to provide assistance to third parties were compensable because the
employees’ actions could have been reasonably expected or foreseen by the employers.
All of the cases cited by the Court involved situations where a third party was at risk in a
dangerous or urgent situation. In acknowledging the difference between the fact patterns
in the precedent cited and the current case, the Court stated “What the instant case lacks in
urgency, it makes up for in familiarity and collegiality.”
In applying the Good Samaritan doctrine to Circuit City, the Court stated there was no
question the vending machine was provided by the employer for the use and comfort of
its employees. Furthermore, products were known to get stuck in the machine. Therefore,
it was reasonably foreseeable that an employee might ask a co-worker for assistance in
dislodging a product from the machine and that a co-worker would come to the aid of a
fellow employee.
Thus, according to the Court, the only remaining question was whether the claimant’s
manner of rendering aid crossed the line of foreseeability and took him outside the scope
of his employment. The Court held it was reasonably foreseeable that, after unsuccessfully
shaking the machine to dislodge a product, “an employee might resort to butting the
machine with his or her shoulder.” The Court concluded that the Commission’s finding that
the employee’s injuries arose out of and in the course of employment was not against the
manifest weight of the evidence and the trial court had erred in reversing the Commission’s
award of benefits.
49
EROSION OF “PERSONAL DEVIATION” EXCEPTION TO
COMPENSABILITY
Generally, when an employee leaves the scope of employment to perform some act that benefits
the employee, rather than the employer, the employee is considered to be engaged in a “personal
deviation” and injuries sustained while in that conduct are not compensable. The Johnson case
below, and the Cox decision previously discussed, illustrate that Illinois Courts have been limiting
the application of the personal deviation exception to compensability through determinations that
the employee had “returned to” or “re-entered” the scope of employment when the accident or
event causing the injuries occurred.
Johnson v. Illinois Workers Compensation Commission,
2011 IL App (2d)100418WC, 956 N.E.2d 543, 353 Ill. Dec. 681 (2d Dist. 2011).
In Johnson, the claimant had been employed as a Will County deputy sheriff for
approximately 19 years. On the day of the accident, the claimant had been assigned to duty
in a specified “patrol zone” in Will County. The claimant admitted he left his assigned patrol
area and drove to a post office in DuPage County to collect his personal mail. He did not
request permission to leave his patrol zone, which was a violation of the employer’s rules.
The claimant testified that as he was leaving the post office, he received a radio assignment
to provide assistance to another deputy back in Will County. The employer’s dispatcher
testified that an assignment from a dispatcher is considered an order from the sheriff that
must be obeyed.
The claimant acknowledged the radio assignment and proceeded to the designated location.
The claimant testified that he did not tell the dispatcher he was outside of his assigned
patrol area. He told the deputy requesting assistance that he was 3-5 minutes away when
he was actually 10-15 minutes away. The claimant also testified he drove in excess of the
posted speed limit from the time he received the dispatch. The claimant was injured when
he entered an intersection on a red light and collided with another vehicle. The accident
occurred in DuPage County approximately 1.5 miles from the Will County border and 20
miles from the location where the other deputy was waiting. The claimant was subsequently
suspended from duty without pay for eight days as a consequence of violating department
rules and regulations when he left his assigned patrol area without permission.
The arbitrator awarded benefits, finding the claimant sustained accidental injuries arising
out of and in the course of his employment. The Commission reversed the arbitrator’s
decision, finding that the claimant was engaged in a personal deviation at the time of his
accident.
50
The Circuit Court of DuPage County reversed the Commission’s decision, finding that
the claimant’s deviation from his duties ended when he received and responded to the
dispatcher’s assignment to assist another deputy.
Appellate Court Review: A divided Appellate Court agreed 3-2 with the trial court. The
majority held it was undisputed that at the time of the collision the claimant was responding
to a radio assignment from the dispatcher to assist another deputy. Based on the dispatcher’s
uncontradicted testimony that an assignment from a dispatcher is considered to be an
order from the sheriff that must be obeyed, the majority determined the claimant’s injuries
arose out of his employment as they were sustained while he was performing acts he was
instructed to perform by his employer—driving his patrol car to a designated location to
assist another deputy.
The employer asserted the claimant was engaged in a personal deviation that broke the
causal connection between his employment and his injuries. The majority agreed that
generally a deviation for purely personal reasons takes an employee out of the course of
employment, and there was no question that prior to receiving the radio dispatch to provide
assistance, the claimant was engaged in a purely personal deviation.
According to the majority, the question was whether at the time of his injury, the claimant
had completed his deviation and resumed a course of conduct related to the business of
his employer such that he could be said to have been in the course of his employment. The
majority stated the only reasonable conclusion that could be drawn from the facts of the
case was that at the time of his injury, the claimant was no longer embarking upon a personal
deviation from his employer’s business, but was acting in the course of his employment,
notwithstanding that he may have been in violation of the rules of his employment.
Appellate Court Dissent: Presiding Justice McCullough, joined by Justice Hudson,
dissented, asserting the Commission had correctly determined the claimant was engaged
in a personal deviation that broke the causal connection between his employment and his
injuries. Therefore, the majority had improperly substituted its own fact-finding prerogative
for that of the Commission.
CAUSATION: THE “GATEWAY” ISSUE FOR ILLINOIS EMPLOYERS
A total of 29 states have statutory provisions or precedents from their highest court, requiring a higher
causation standard than that in Illinois with respect to claims for specified injuries or categories of
injuries for which workers’ compensation claims are filed (e.g. a higher showing of causation is
required with respect to claims for workers’ compensation benefits for certain types of injuries
such as mental-mental injuries, injuries resulting from aggravation of pre-existing conditions, and
mental-physical injuries involving heart attacks and strokes, etc.).
51
At least 10 states have statutorily established a higher causation standard than Illinois for workrelated injuries across the board. The following table compares current workers’ compensation
insurance premium costs in Illinois to those 10 states.
2012 Workers' Compensation Premium Costs
(per $100 of payroll)
Significant/
Prevailing
Factor States
Missouri
Mississippi
Arkansas
Kansas
Oregon
Major Cause
States
Florida
South Dakota
Tennessee
Oklahoma
Illinois
0
.50
1.00
1.50
2.00
2.50
3.00
Source: Oregon Department of Consumer & Business Services "Workers' Compensation Rate Rankings" 2012.
REPETITIVE TRAUMA INJURIES—ACCIDENTAL INJURY STANDARD
LIBERALIZED
Prior to 1987, claims seeking benefits for repetitive trauma injuries, like all other workers’
compensation claims, had to make the requisite showing of an “accidental injury” by establishing
a specific incident or occurrence traceable to a definite time, place and cause, e.g. the date of
injury. It was extremely difficult to satisfy this requirement in cases involving repetitive trauma
injuries, which typically develop over a period of time. Consequently, the Commission denied and
the higher courts upheld, the denial of an increasing number of workers’ compensation claims for
repetitive trauma injuries.
52
Peoria County Belwood Nursing Home v. The Industrial Commission,
115 Ill. 2d 524, 505 N.E.2d 1026, 106 Ill. Dec. 253 (1987).
In Peoria County, the Illinois Supreme Court significantly lowered the claimants’ burden of
proof for repetitive trauma injury claims by holding that they could establish a date of injury
for repetitive trauma injury claims, without a showing of a specific incident, traceable to a
definite time, place and cause.
In Peoria County, the claimant sought workers’ compensation benefits, alleging she
developed carpal tunnel syndrome in her left wrist as a result of her employment in the
Peoria County Belwood Nursing Home laundry room. The claimant identified the date of
her injury as October 5, 1976, which was the date that she first sought medical attention for
her symptoms.
The claimant’s testimony at the hearing on her claim disclosed that she noticed pain,
numbness and tingling for a substantial period of time prior to October 5, but it was unclear
as to exactly how long she experienced symptoms. The arbitrator amended the application
for benefits to reflect a date of injury of October 4, 1976, the last day she worked before
seeking medical attention for her symptoms. The arbitrator found the claimant sustained
an accidental injury as a result of repeated trauma to her wrists in operating the employer’s
laundry equipment and awarded benefits.
The Commission and the Circuit Court of Peoria County confirmed the award of benefits.
Appellate Court Review: On appeal, the employer argued (1) the claimant did not satisfy
the threshold requirement of showing her injury was an accidental injury under the Act
because there was no specific incident by which the claimant’s injury could be traced to a
definite time, place and cause, and (2) without a date of injury, the claim was barred by the
Act’s requirement that a claim be filed within three years of the date of the accidental injury.
A divided Appellate Court affirmed the award of benefits. The majority opinion acknowledged
longstanding judicial precedent holding that an injury is accidental only if it is traceable to
a definite time, place and cause. However, the majority found that the purpose of the Act
required that the “judicial interpretation” of “accident” needed to be “refined” to reflect the
dynamics of a changing work environment and resulting injuries from performing repetitive
tasks.”
The majority adopted a “manifestation date” standard recognized in other jurisdictions for
purposes of establishing the date of injury in repetitive trauma cases. Thus, the majority held
the date of injury in repetitive trauma cases was the date on which the injury manifested
itself: that is, the date when both the fact of the injury and the causal relationship between
the injury and the employment are plainly evident.
53
In applying the new standard to the facts in Peoria County, the majority concluded that
the arbitrator correctly set the date of the claimant’s repetitive trauma injury as October
4, 1976, which was the last day she worked before her injury and its relationship to her
employment became apparent. It followed, therefore, that the application for benefits filed
by the claimant on August 24, 1979 was within the Act’s three-year statute of limitations.
Appellate Court Dissent: Presiding Justice Webber, joined by Justice Lindbergh, pointedly
characterized the majority opinion as a “usurpation of legislative authority.” The dissent
stated the majority’s ruling was an abrogation of long-established principles requiring strict
adherence to the definite time, place and cause requirement for proving a workplace injury
was accidental. The dissent also noted that the General Assembly amended the Occupational
Diseases Act in 1975 to specifically reflect disablement resulting from repetitive trauma
injury. However, it did not amend the Workers’ Compensation Act accordingly, despite
numerous appellate decisions denying compensability of repetitive trauma injuries based
on the Illinois Supreme Court’s definite time, place, and cause requirement.
Illinois Supreme Court Review: The Illinois Supreme Court unanimously affirmed the
Appellate Court’s decision and adoption of a manifestation date standard for determining
the date of injury in repetitive trauma injury claims. The Court held that the purpose of the
Act would “best be served by allowing compensation in cases where an injury has been
shown to be caused by the performance of a claimant’s job and has developed gradually
over a period of time without requiring a complete dysfunction.” Apparently in response to
the Appellate Court’s pointed dissent, the Supreme Court stated its holding was not “judicial
legislation” rather it was “necessary and proper judicial statutory interpretation” required to
implement the purpose of the Workers’ Compensation Act.
REPETITIVE TRAUMA INJURIES—­STATUTE OF LIMITATIONS
DISREGARDED
The Act’s three-year statute of limitations requirement is intended to ensure that workers’
compensation claims are filed timely and bars claims that are not filed within three years of the date
of the alleged workplace injury. Commission and Appellate Court decisions following Peoria County
resulted in inconsistent interpretations and rulings as to the compensability of repetitive trauma
injury claims seemingly because a strict application of the Peoria County standard resulted in the
manifestation date (e.g. the date of injury adopted by the Commission) falling outside the threeyear statute of limitations. In Durand, the Illinois Supreme Court significantly expanded the criteria
for determining the manifestation date of a repetitive trauma injury by allowing the Commission
to consider a wide range of factors in establishing the date in order to avoid time‑barred repetitive
injury claims.
54
Durand v. The Industrial Commission,
224 Ill. 2d 53, 862 N.E.2d 918, 308 Ill. Dec. 715 (2006).
In Durand, the Illinois Supreme Court overruled an Appellate Court decision applying
the Peoria County standard, which upheld the Commission’s denial of benefits because
the manifestation date adopted by the Commission fell outside the statutory three-year
limitation period for filing claims for workers’ compensation benefits.
In Durand, the claimant filed an application for benefits on January 12, 2001 seeking recovery
for carpal tunnel syndrome injuries to her wrists and arms that developed as the result of
performing continuous computer work required by her job. The claimant listed September
8, 2000 as the date of injury, which was the date she was diagnosed with work‑related
carpel tunnel syndrome by a physician.
The claimant’s testimony at the arbitration hearing disclosed she had noticed symptoms
in her hands in September or October of 1997 that she thought might be carpal tunnel
syndrome. Additionally, she testified that she had a conversation with her supervisor in
January of 1998, in which she informed the supervisor about her symptoms and her belief
the problem was work-related.
The arbitrator awarded benefits based on the claimant’s stated injury date of September 8,
2000, notwithstanding an acknowledgment that the claimant had experienced symptoms
of carpel tunnel syndrome well before the confirming diagnosis on September 8. On review,
the Commission (with one dissenting vote) reversed the arbitrator’s decision, finding the
claimant’s injury manifested itself in 1997; thus, the claim filed on January 12, 2001 was
outside the three-year statute of limitations. The Circuit Court of Peoria County confirmed
the Commission’s decision.
Appellate Court Review: A divided Appellate Court affirmed the denial of benefits, holding
that according to the Peoria County standard, the claimant’s injury manifested itself in 1997.
Thus, her January 12, 2001 claim was barred by the Act’s limitation provisions.
Appellate Court Dissent: Justice Holdridge dissented, stating the manifestation date upheld
by the majority was at best the date the claimant became aware of a potential disability.
Justice Holdridge essentially “looked back” at the last date—January 12, 1998, in relation to
the claim filing date of January 12, 2001—that the claimant’s injury could have manifested
itself in accord with the Peoria County standard and still be within the Act’s three-year
limitation period. Justice Holdridge then concluded the evidence in the record did not
support a finding that prior to January 12, 1998, the fact of an injury would have been plainly
apparent to a reasonable person “in Durand’s situation” because the intermittent nature of
her symptoms left the claimant unsure as to whether she had a distinct injury.
55
Illinois Supreme Court Review: On appeal, the claimant argued the Commission’s finding
that her injury occurred in 1997 was against the manifest weight of the evidence and contrary
to Illinois law. The Illinois Supreme Court rejected the assertion that the lower decisions
were contrary to Illinois law, stating that the Appellate Court, the Circuit Court and the
Commission had employed the correct standard in determining when the claimant’s injury
manifested itself.
Nonetheless, the majority, in a 3-2 decision, reversed the lower decisions, holding the
Commission’s determination that the date of the claimant’s injury was in 1997, was against
the manifest weight of the evidence. It refused to apply the Peoria County standard to
Durand, stating that to do so would rely on “expert medical opinions from a layperson.”
According to the majority, “because repetitive trauma injuries are progressive, the employee’s
medical treatment, as well as the severity of the injury and particularly how it affects the
employee’s performance, are relevant in determining objectively when a reasonable person
would have plainly recognized the injury and its relation to work.” The Court then stated
the September 8, 2000 date of the conclusive diagnosis of the claimant’s carpal tunnel
syndrome was the manifestation date and ruled that Durand’s claim had been timely filed.
Illinois Supreme Court Dissent: Justice Garman dissented, joined by Justice Karmeier,
contending the claimant’s testimony before the arbitrator more than adequately supported
the Commission’s conclusion that the claimant’s carpal tunnel syndrome would have been
plainly apparent to a reasonable person in September or October of 1997. The dissent argued
that in rejecting the 1997 manifestation date and adopting instead the date the claimant’s
condition was formally diagnosed, the majority not only misapplied the deferential manifest
weight of the evidence standard of review, but it obscured the straightforward test set forth
in Peoria County. Furthermore, it established a de facto requirement that regardless of
a claimant’s actual and reasonable awareness of an injury’s manifestation, corroborative
medical treatment is necessary before it can be said that a reasonable person would plainly
recognize the injury and its causal relationship to his or her employment.
The dissent commended the claimant for her diligence in continuing to work through her
pain, but specifically stated that she should not be excused from her obligation to file a
timely application for benefits.
56
LIMITATIONS ON COMPENSABILITY OF PRE-EXISTING CONDITIONS
VIRTUALLY ELIMINATED
Pre-existing conditions or disabilities that are aggravated or accelerated by an accidental injury
arising out of and in the course of employment are compensable. Longstanding judicial precedent
in Illinois holds that employers take their employees “as they find them.” Thus, claims for workplace
injuries are compensable even if employees have pre-existing conditions that may make them
more vulnerable to injury.
Consistent with the judicially established low causation standard in Illinois workers’ compensation
law generally, the employment need only be “a” causative factor in the accidental injury that
aggravates or accelerates a previously existing condition. Once an employee establishes causation,
the employer is liable for all resulting costs of treatment, even for the pre-existing condition. This
view is in stark contrast to early precedent where the Court clearly envisioned limitations on the
employer’s liability for aggravation of pre-existing conditions. In Rittler v. Industrial Comm’n, 351 Ill.
338, 184 N.E.2d 654 (1933)., the Illinois Supreme Court held that “if there is a pre-existing disease the
employee is entitled to recover for all consequences attributable to the injury in the acceleration
or aggravation… of the disease.” The Court further stated, “Such aggravation or acceleration… will
entitle the employee to compensation to the extent and in the proportion in which the pre-existing
disease is increased or aggravated.”
Prior to the Sisbro case discussed next, it was widely held that the judicial precedent of established
exceptions to compensability in pre-existing condition cases was also longstanding in Illinois
workers’ compensation case law. The “normal daily activity” and “no greater risk” exceptions
operated to preclude recovery in cases involving workplace injuries that aggravated or accelerated
pre-existing conditions where “the employee’s health had so far deteriorated that any normal daily
activity was an overexertion” or where it was shown that the activity engaged in at the time of injury,
“presented risks no greater than those to which the general public is exposed.” The Sisbro decision
effectively eliminated these exceptions.
Sisbro, Inc. v. The Industrial Commission,
207 Ill. 2d 193, 797 N.E.2d 665, 278 Ill. Dec. 70 (2003).
In Sisbro, Inc., the claimant twisted his ankle when he stepped out of his truck and into a
pothole while picking up a load of products for his employer. Initial pain and swelling to
the ankle resolved in a few days. A few weeks after the accident, the swelling in his ankle
returned and would not resolve. Prior to the accident, the claimant had been receiving
regular preventative foot care from a podiatrist relative to his diabetic neuropathy (decreased
sensitivity in the extremities).
57
The claimant was diagnosed with acute onset of diabetic Charcot osteoarthropathy in his
right ankle and ordered to stay off his foot. The claimant’s podiatrist described Charcot
as destruction or breakdown of the joints in the extremities that was usually initiated
by a trauma (even a minor trauma) and often associated with diabetic neuropathy. The
claimant’s doctor believed that the Charcot was triggered when the claimant twisted his
ankle. Conversely, the employer’s medical expert believed that the Charcot condition in the
claimant’s right ankle pre-existed the workplace accident and had developed slowly over
time as a result of the claimant’s poorly controlled diabetes and “micro traumas” to the feet
caused by everyday living.
The arbitrator found the claimant had sustained an accidental injury in the course of and
arising out of his employment and the Charcot was causally related to the claimant’s ankle
injury. The Commission and the Circuit Court for Adams County upheld the arbitrator’s
decision awarding benefits.
Appellate Court Review: On appeal, the employer argued the claimant was not entitled to
compensation because both medical experts agreed that even minor trauma could have
caused the onset of Charcot because of the claimant’s poorly controlled diabetes.
A divided Appellate Court agreed with the employer and reversed the lower rulings, holding
a claimant is not entitled to compensation, regardless of whether his condition of ill‑being
was caused by a work-related aggravation of a pre-existing condition, if his physical
condition has so deteriorated that his condition of ill-being could have been produced
by normal daily activity. The majority further ruled that because the Commission did not
consider either of the two exceptions to the general rule allowing for compensation in
preexisting injury cases, the Commission’s award of compensation was against the manifest
weight of the evidence.
Appellate Court Dissent: Justice Rarick’s dissent, joined by Justice Holdridge, criticized
the majority for impermissibly substituting its judgment for that of the arbitrator, the
Commission and the Circuit Court. The dissent further contended that the Commission
had considered the applicability of the “normal daily activity” exception and had properly
concluded the exception did not apply.
Illinois Supreme Court Review: The Illinois Supreme Court unanimously reversed the
Appellate Court decision, stating it failed to accord the appropriate deference to the
Commission’s factual findings and applied an overly broad interpretation of the “normal
daily activity” limitation on recovery in pre-existing condition cases. In particular, the Court
took issue with the Appellate Court’s holding that even when a work-related accidental
injury is shown to be an actual causal factor, recovery should be denied if normal daily
activity could have brought on the claimant’s disabling condition.
The Court stated it had never found a causal connection to exist between work and
injury and then denied recovery based on a “normal daily activity exception” or a “greater
58
risk exception.” The Court held that the issue of whether the employee’s health has so
deteriorated that any normal daily activity is an overexertion, or where it is shown that the
activity engaged in presented risks no greater than those to which the general public is
exposed, “is not an exception precluding recovery, but rather a factor of the initial analysis
necessary to determine if there is a causal connection between the workplace injury and
the aggravation or acceleration of a pre-existing condition.”
EMPLOYER LIABILITY FOR SUBSEQUENT INJURIES EXPANDED
Generally, aggravation of an injury or disabling condition originally resulting from a workplace
accident is considered compensable unless the employer can show the aggravation or subsequent
injury was caused by an independent intervening act. The following case expands an employer’s
liability for injuries from completely unrelated subsequent events so long as the claimant has not
completely recovered from the original workplace injury.
Vogel v. The Industrial Commission,
354 Ill. App. 3d 780, 821 N.E.2d 807, 290 Ill. Dec. 495 (2d Dist. 2005).
In Vogel, the claimant sustained work-related injuries resulting in herniated discs and a
bulging disc in July 1998. The claimant underwent fusion surgery involving a bone graft
to repair the affected discs in March 1999. Periodic x-rays taken after the surgery showed
that as of June 4, 1999, the fusion was not completely solid. The claimant was advised to
continue to wear his rigid neck brace while driving.
On June 9, 1999, the claimant was involved in an automobile accident in which his vehicle
was hit from behind. After the accident, the claimant experienced pain in his neck, shoulder
and arm. X-rays taken at the emergency room showed the bone graft remained in place
and the alignment remained satisfactory, as did x-rays taken at the end of July. The
claimant continued to experience pain in the upper part of his right arm and shoulder. His
neurosurgeon referred him for orthopedic treatment, which was unsuccessful in resolving
the symptoms.
In November 1999, tests revealed a failed fusion which the claimant’s neurosurgeon
attributed to the June 9th automobile accident. Subsequent conservative treatments
were not successful and the neurosurgeon determined a second fusion surgery would
be necessary. On April 7 and June 18, 2000, the claimant was involved in two additional
59
automobile accidents. The neurosurgeon opined that these accidents further aggravated
the failed fusion.
The claimant’s application for workers’ compensation benefits included temporary total
disability benefits and medical expenses related to the original workplace injury and the
three subsequent automobile accidents. Conflicting medical evidence was provided as to
the cause of the failed fusion. The claimant’s neurosurgeon believed that the automobile
accidents aggravated, but did not cause the failed fusion. The employer’s medical expert
believed that the automobile accidents did not contribute in any way to the failed fusion.
Rather, the failed fusion was the result of inherent biological reasons and the claimant’s
failure to comply with directives that he wear a rigid brace while driving.
The arbitrator found that the claimant’s current condition of ill-being was not causally
related to his original July, 1998 work injury and awarded benefits attributable only to the
original work injury. The Commission adopted the arbitrator’s decision.
The Circuit Court for DuPage County held the Commission’s decision—that the automobile
accidents broke the causal chain—was against the manifest weight of the evidence and
contrary to law. On remand, the Commission awarded the claimant additional TTD benefits
and medical expenses related to the three automobile accidents and determined that the
employer was liable for the costs of the second spinal fusion surgery recommended by the
claimant’s neurosurgeon.
Appellate Court Review: On appeal, the employer asserted the trial court erred in setting
aside the Commission’s original decision that the automobile accidents were intervening
events that broke the causal connection between the claimant’s work injury and the failure
of the spinal fusion.
The Appellate Court unanimously affirmed the Circuit Court’s decision and held that when
a claimant’s condition is weakened by a work-related accident, a subsequent non-workrelated accident that aggravates the condition does not break the causal chain. According
to the Court, the failed fusion would not have occurred but for the claimant’s work injury;
therefore, the medical testimony established that the automobile accidents were concurrent
causes along with the work injury.
The Court distinguished precedent relied on by the employer as showing that a subsequent
accident broke the causal chain, holding that in those cases, the claimants had recovered
from their work injuries before the subsequent accidents occurred. In Vogel, the claimant
was still recovering from surgery and had not yet been released to return to full duty work
when the automobile accidents occurred.
60
CONCLUSION
A CLEAR CASE OF JUDICIAL ACTIVISM
F
or purposes of this report, and in the context of the Illinois Workers’ Compensation Act, the
reference to “judicial activism” is intended to encompass the means employed by the judiciary
to advance outcomes through judicial interpretation that comport with the premise that the
Act is remedial in nature and should be construed liberally to effectuate its purposes.
Thus, judicial activism embodies the use of judicially created or adopted doctrines,
concepts and broad and varying definitions and terms, none of which have any
statutory basis. Additionally, judicial activism refers to the mixing and matching of
rules of statutory construction where statutory language is silent, ambiguous, and
even where the specific language of the Act mitigates against finding compensability.
Judicial activism allows the judiciary to create, adopt, expand, relax, reverse or reject prior precedent
as necessary (from the perspective of the judiciary) to arrive at outcomes favorable to the injured
worker.
All but two of the decisions reviewed in this report have been decided within the past ten years,
eleven of the decisions have been handed down within the past five years.
• In 11 of the 19 decisions reviewed in this report, the highest reviewing court overturned
Commission or trial court decisions denying benefits.
• In 9 decisions, the determination that a claim was compensable was arrived at through
application of a judicial doctrine, concept or exception.
• In 7 decisions, the court overturned or significantly departed from long-standing precedent
in finding compensability.
• In 2 decisions, the Court employed a strict statutory construction analysis to deny
employer requested relief.
• In 1 decision, the Court ignored Commission precedent that had been accepted since the
passage of the Act 100 years ago.
61
Over the past decade, it would be difficult to discern a workers’ compensation
decision from an Illinois higher court that would be considered to have
yielded a favorable ruling of similar import from an employer’s perspective.
Aside from the tangible adverse impact on employers resulting from increased costs for medical
care and indemnity benefits, judicial activism is likely to result in higher litigation costs for employers,
and increased workers’ compensation insurance premiums because of unfavorable risk on the part
of insurance carriers providing workers’ compensation insurance policies in Illinois.
Indeed, the pattern of adverse decisions being rendered by Illinois Courts in workers’ compensation
cases is such that an employer or insurance company may well conclude that no matter how
egregious the indignity, the rational mind suggests settlement. When Illinois employers, their
insurers and their counsel perceive adverse judicial outcomes are a foregone conclusion, the chill
imposed upon the employers’ fervor towards litigation to resolve legitimate disputes is itself an
injustice. The existence of such a perception promotes alienation, distrust of government and
perpetuates the state’s anti-business reputation.
Action must be taken to reverse a history of legislative inaction and acquiescence by the Illinois
General Assembly, which has fostered a prolific level of judicial activism in Illinois workers’
compensation jurisprudence.
Indeed, the lack of such legislative guidance is not lost on the Courts. Several Supreme and Appellate
Court workers’ compensation decisions have implicitly or explicitly put the General Assembly on
notice that, absent an expression of legislative direction, the court’s path is set.
It is incumbent upon the General Assembly to revisit the Act and offer a more restrictive
interpretation of these fundamental provisions because it is obvious the higher courts are ignoring
and undermining the policy goals of the Executive and Legislative branches to improve the business
climate, reduce unemployment, and improve the state’s reputation and standing in multi-state
competitive measures.
We conclude that the judiciary is not in line with policy objectives aimed at promoting job growth
and reversing the economic trajectory of recent years at a critical point in time when business, labor
and government should be collaborating to promote and restore full employment and economic
prosperity for the citizens of Illinois.
Several Supreme and Appellate Court workers’ compensation decisions have implicitly or explicitly put
the General Assembly on notice that, absent an expression of legislative direction, the court’s path is set.
62
LEGISLATIVE PRIORITIES
IN RESPONSE TO ILLINOIS JUDICIAL ACTIVISM
Defining when a “traveling employee” is within the scope of “arising out of and in the course of”
employment”: With six major Appellate Court decisions since 2007 dramatically expanding the
scope of what constitutes a “traveling employee,” the General Assembly must act to bring sensible
balance to the workers’ compensation system in Illinois. Employers agree that compensation is
justified when an employee’s travel is work-related and the worker is injured while engaged in
reasonable work-related activities during such travel. Commuting to or from work or engagement
in personal activities outside an employer’s workplace rules should not be considered arising out of
and in the course of employment.
Defining when the workplace is within the scope of “arising out of and in the course of”
employment: The General Assembly must also act to pass legislation clearly expressing legislative
intent and parameters of effectuating the provisions of the law with the objective of ensuring
that the workers’ compensation system fairly determines when an employer is responsible for a
workplace injury. Employers should not be held responsible for actions of employees who are
injured when engaged in activities outside their scope of employment.
The Workers’ Compensation Act provides for a “no-fault” system for the compensation of injuries
due to work-related accidents. As a result, assumption of the risk and comparative negligence
principles do not—and should not—play a role in determining whether the employee has a
compensable claim under the Act. Separate from the issue of compensability, however, is the issue
of whether the condition of ill-being claimed by the employee is causally related to a work accident
as opposed to being related to a pre-existing condition, or a condition which later develops, but
is not a result of the work accident. An employee’s condition must be causally connected to an
accidental work injury for him to obtain benefits under the Act.
Under current Illinois law, the work accident need not be the sole proximate cause or even a primary
cause of the employee’s injury. “[E]ven though an employee has a preexisting condition which may
make him more vulnerable to injury, recovery for an accidental injury will not be denied as long as
it can be shown that the employment was also a causative factor. … Accidental injury need not be
the sole causative factor, or even the primary causative factor, as long as it was a causative factor
in the resulting condition of ill-being.” Sisbro, Inc v. IIC. 207 Ill. 2d 193, 797 N.E.2d 665, 278 Ill. Dec.
70 (2003). Thus, if a work accident aggravates or accelerates (even slightly) a pre-existing condition,
the employer is liable for 100% workers’ compensation benefits. Once the employee establishes
causation, the employer is liable for the costs of all resulting care and disability even for the preexisting condition. Illinois allows for workers compensation benefits if the workplace could have
played any role in the injury. So even if the workplace only contributed 0.01% to the cause of an
injury, the employer is responsible for the entire medical and disability costs. Under current law,
any doctor and any arbitrator are likely to find causation and award medical and disability benefits.
Twenty-nine states have a higher causation standard than Illinois. Missouri, Kansas, Oklahoma and
63
Tennessee, following the trend of other states in the past few years, passed laws requiring the
workplace to be the prevailing/primary cause for workers’ compensation to be compensable in
their state.
Employers should not be required to pay temporary disability benefits when the injured worker has
been discharged for cause. Employers also should not be held responsible for actions of employees
who are injured when engaged in activities outside their scope of employment.
Body as a whole injuries should have credits for prior injuries: We also agree with Attorney
General Lisa Madigan’s recommendation that in cases involving a subsequent injury to a body part
for which the employee has already been compensated, the permanency award must be based on
evidence of the employee’s resulting permanent disability, regardless of whether that will result in
the employee receiving more money for the loss of use of that body part. The Attorney General
also recommends that an employer should receive credit for “person as a whole” awards if the
employee’s subsequent injury is to the same body part as the prior injury.*
To add further injury to Illinois employers, a recent Third District Appellate Court Workers’
Compensation Commission Division decision held that a shoulder injury should be treated as an
injury to the “person as a whole” rather than as an arm injury. Will County Forest Preserve District
v. IWCC, 2012 IL App (3d) 110077WC, 970 N.E.2d, 361 Ill. Dec. 16. The decision, which is contrary
to over 100 years of precedent, is likely to result in a significant increase in costs for employers.
Permanent partial disability benefits are calculated based on a number of benefit weeks; and the
number of weeks awarded varies by the body part injured. If an injury is treated as an injury to the
person as a whole, the benefits are awarded based on a percentage of 500 weeks, in contrast to
the 253 weeks used in arm injury cases. As a result, the petitioner in the Will County case, who
experienced a 25% loss of use of his shoulder, was awarded 125 benefit weeks – nearly double what
he would have received under the longstanding precedent that treated shoulders as part of the arm.
The Will County case also provides an example of loss of credit for prior injuries. Several years
before the petitioner’s shoulder injury, he sustained an injury that required surgery to his right
elbow and a right carpal tunnel release. He settled with his employer for 15% loss of use of his right
hand and 15% loss of his right arm. If the court had treated his shoulder injury as an arm injury, the
employer could claim a credit for the previous arm award against this new award. With the recent
decision, however, an employer cannot claim such credit.
The legislature must reverse this court decision to restore balance to the Illinois workers’
compensation system.
*Background on Workers’ Compensation Claims Filed by State Employees and Reforms Proposed by the Office of the Attorney General, March 2012
64
CURRENT ILLINOIS SUPREME COURT PARTICIPANTS IN KEY
WORKERS’ COMPENSATION COMMISSION DECISIONS*
JUSTICE
NAME
Year
Retention
Elected Election
Durand v.
IC (2006)
Interstate
Scaffolding v.
IWCC (2010)
Robert Thomas
2000
2020
Concurred
Concurred
Concurred
Charles Freeman
1990
2020
Concurred
Concurred
Concurred
Thomas Kilbride
2000
2020
Concurred
Concurred
Concurred
Rita Garman
2001
2022
Authored
Dissent
Concurred
Authored
Opinion
Lloyd Karmeier
2004
2014
Dissent
Concurred
Took No Part
in Decision
Anne Burke
2006
2016
Took No Part
in Decision
Authored opinion
Case Precedes
Appointment
Mary Jane Theis
2010
2020
Case Precedes
Appointment
Case Precedes
Appointment
Case Precedes
Appointment
Cassens
Transport Co.
v. IC (2006)
* E.R. Moore v. The Industrial Commission, 71 Ill. 2d 353, 376 N.E.2d 206, 17 Ill. Dec. 207 (1978)., Peoria County Belwood Nursing Home v.The Industrial
Commission, 115 Ill. 2d 524, 505 N.E.2d 1026, 106 Ill. Dec. 235 (1987). and Sisbro, Inc. v. The Industrial Commission, 207 Ill. 2d 193, 797 N.E.2d 665, 278 Ill. Dec.
70 (2003). are not included because none of the participating justices are currently on the bench.
On May 29, 2013, the Illinois Supreme Court granted the petition for leave to appeal filed by the respondent in The Venture-Newberg Perini Stone and Webster
v. Illinois Workers’ Compensation Commission, 2012 IL App (4th) 110847WC.
65
CURRENT ILLINOIS APPELLATE COURT PARTICIPANTS
IN KEY WORKERS’ COMPENSATION DECISIONS
66
CASES
Judge Thomas
Hoffman
(1994-2014)
Judge William
Holdridge
(1994-2014)
Durand v. IC (2006)
Authored Opinion
Authored Dissent
Sisbro, Inc. v. IIC (2003)
Concurred
Dissented
Vogel v. IC (2005)
Concurred
Concurred
The Venture-Newberg Perini Stone and
Webster v. IWCC (2012)
Authored Opinion
Concurred
Cox v. IWCC (2010)
Authored Opinion
Concurred
Potenzo v. IWCC (2007)
Authored Opinion
Concurred
Metropolitan Water Reclamation District
of Greater Chicago v. IWCC (2011)
Authored Opinion
Specially Concurred
Circuit City Stores v. IWCC (2009)
Concurred
Authored Opinion
Johnson v. IWCC (2011)
Authored Opinion
Concurred
Chicago Transit Authority v. IWCC (2013)
Concurred
Authored Opinion
Diaz v. IWCC (2013)
Concurred
Concurred
Will County Forest Preserve
District v. IWCC (2012)
Concurred
Concurred
Interstate Scaffolding, Inc. v. IWCC (2010)
Concurred
Authored Dissent
J.S. Masonry, Inc. v. IIC (2006)
Authored Opinion
Concurred
Cassens Transport Co. v. IC (2006)
Concurred
Authored Special
Concurrence
Mlynarczyk v. IWCC (2013)
Concurred
Concurred
Kertis v. IWCC (2013)
Concurred
Authored Opinion
Judge John
McCullough
(deceased)
Judge Richard
Goldenhersh
(1988-2018)
Judge Bruce
Stewart
(2006-2016)
Judge Donald
Hudson
(2009-2019)
Judge John
Turner
(2002-2022)
Concurred
Dissented
Dissented
Concurred
Dissented
Dissented
Concurred
Concurred
Concurred
Concurred
Concurred
Concurred
Concurred
Concurred
Concurred
Concurred
Dissented
Concurred
Concurred
Concurred
Dissented
Concurred
Concurred
Dissented
Authored Opinion
Concurred
Dissented
Concurred
Authored Opinion
Concurred
Authored Dissent
Authored Opinion
Concurred
Thomas M. Harris*
concurred
Thomas M. Harris*
concurred
Concurred
Concurred
Authored Opinion
Concurred
Authored Opinion
*Appointed to fill Justice McCullough vacancy­—Term 1-1-2013 until further order of the Illinois Supreme Court
67
BIOGRAPHIES
SUPREME COURT
Anne Burke
Supreme Court Justice, First District
Justice Burke was appointed to the Supreme Court in 2006 and elected in
2008, for a total of seven years on the court. She is a Chicago resident who
graduated from Chicago-Kent School of Law in 1983. Justice Burke formerly
served as special counsel to the Governor for Child Welfare Services. She
next faces election in 2018.
Charles Freeman
Supreme Court Justice, First District
Justice Freeman was elected to the Supreme Court in 1990 and has spent
a total of 23 years on the court. He is a Chicago resident and graduated
from John Marshall Law School in 1962. He previously served as a Circuit
Court Judge, an Assistant State’s Attorney and an attorney for the Board of
Commissioners. He served as the Illinois Supreme Court’s Chief Justice from
1997 to 2000. His next election is in 2020.
Mary Jane Theis
Supreme Court Justice, First District
Justice Theis was appointed to the Supreme Court in 2010 and elected in
2012, for a total of three years on the court. She is a Chicago resident and
graduated from the University of San Francisco School of Law in 1974. Justice
Theis is a former public defender and was appointed an Associate Judge in
the Circuit Court of Cook County in 1983. She was elected to the Appellate
Court in 1994. Her next election is in 2022.
68
Robert Thomas
Supreme Court Justice, Second District
Justice Thomas was elected to the Supreme Court in 2000, for a total of
13 years on the court. A Wheaton resident, Justice Thomas graduated from
Loyola University School of Law (1981). He served as the Supreme Court’s
Chief Justice from 2005 to 2008. He was originally elected Circuit Court
Judge in DuPage County in 1988 and served as Acting Chief Judge from
1989 to 1994. Thomas was elected to the Appellate Court Second District in
1994. He next faces election in 2020.
Thomas Kilbride
Supreme Court Justice, Third District
Justice Kilbride was elected in 2000, for a total of 13 years on the court. He
served as Chief Justice from 2010-2013. He is a Rock Island resident and
graduated from Antioch School of Law in Washington, D.C. in 1981. He next
faces election in 2020.
Rita Garman
Supreme Court Chief Justice, Fourth District
Justice Garman was appointed in 2001 and elected in 2002, for a total of 12
years on the court. She was recently elected to serve as the Supreme Court’s
Chief Justice. The Danville resident graduated from the University of Iowa
College of Law with distinction in 1968. She formerly served as Vermilion
County Assistant State's Attorney and as Appellate Court Justice for Illinois’
Fourth District. She next faces election in 2022.
Lloyd Karmeier
Supreme Court Justice, Fifth District
Justice Karmeier was elected in 2004, for a total of nine years on the court.
The Nashville, IL. resident graduated from the University of Illinois College of
Law in 1964. He previously served as State’s Attorney for Washington County
from 1968 to 1972 and was resident Circuit Judge of Washington County
from 1986 to 2004. He next faces election in 2014.
69
APPELLATE COURT
Thomas Hoffman
Appellate Judge, First District
Judge Hoffman was assigned in 1993 and elected in 1994, for a total of 19
years on the court. The Palatine resident graduated from John Marshall Law
School in 1971. Judge Hoffman was first appointed an Associate Judge of
the Circuit Court of Cook County in 1984 and elected a Circuit Judge of the
Circuit Court of Cook County in 1988. His next election is in 2014.
Donald Hudson
Appellate Judge, Second District
Judge Hudson was appointed in 2009 for a total of four years on the court.
The St. Charles resident graduated from John Marshall Law School in 1975.
He previously served as the Chief Judge of the 16th Judicial Circuit Court
from 2004 to 2008. His next election is 2018.
William Holdridge
Appellate Judge, Third District
Judge Holdridge was elected in 1994, for a total of 19 years on the court. A
Peoria resident, Holdridge graduated from Southern Illinois University Law
School in 1984. He also holds M.S. and Ph.D. degrees from the University of
Illinois. Before becoming a judge, he was a professor at University of Illinois
and Southern Illinois University. He faces re-election in 2014.
70
John T. McCullough (Deceased)
Appellate Judge, Fourth District
Judge McCullough was elected in 1984 and served on the Appellate Court
for 28 years. He was a resident of Lincoln and graduated from the University
of Illinois College of Law in 1955. Judge McCullough served 22 years on the
Workers' Compensation Division of the Appellate Court and was elected by
his peers as the Presiding Justice of the Commission for each of those years.
Judge McCullough was also the longest serving judge in Illinois history,
serving 50 years on the bench before he died in 2012.
John Turner
Appellate Judge, Fourth District
Judge Turner was appointed in 2001 and elected in 2002, for a total of 11
years on the court. He is a Lincoln resident and graduated from DePaul
University College of Law in 1981. Judge Turner served in the Illinois House
of Representatives from 1994 to 2001 where he was a member of the House
Judiciary Criminal Law Committee and spokesman of the House Judiciary
Civil Law Committee. He faces re-election in 2022.
Thomas M. Harris, Jr.
Appellate Judge, Fourth District
Judge Harris was appointed in 2013 to the Appellate Court by Illinois Supreme
Court Justice Rita B. Garman effective January 3, 2013. He is a Lincoln resident
and received his J.D. from the University of Colorado in 1988. Judge Harris
began his legal career as a Logan County Assistant State's Attorney in 1988.
From 1991 to 2007, he was a trial attorney handling civil cases throughout
the State of Illinois. He was appointed Associate Judge in 2007 and elected
Resident Circuit Judge of Logan County in 2008. Judge Harris will continue
to serve until further order of the Court.
Richard Goldenhersh
Appellate Judge, Fifth District
Judge Goldenhersh was elected in 1988, for a total of 25 years on the court.
He is a Belleville resident and graduated from Washington University Law
School in 1969. Judge Goldenhersh was appointed an Associate Judge of
the 20th Judicial Circuit in 1975 and became a Circuit Judge in 1982. Judge
Goldenhersh is a member of the Supreme Court Committee on Complex
Litigation, the ISBA Section Council on Civil Practice and Procedure, and
former chairperson of the Associate Judge Coordinating Committee. He
faces re-election in 2018.
Bruce Stewart
Appellate Judge, Fifth District
Judge Stewart was elected in 2006, for a total of seven years on the court. He
is a Harrisburg resident and graduated from the Southern Illinois University
School of Law as a member of its charter class in 1976. Judge Stewart
practiced law in Southern Illinois from 1976 until 1995, with primary emphasis
on litigation. In 1995, he was appointed Circuit Judge of the First Judicial
Circuit and was elected to that position in 1996. He served as a Circuit Judge
until November 2006 when he was elected to the Fifth District Appellate
Court. He faces re-election in 2016.
71
CASES REVIEWED
Kertis v. Illinois Workers Compensation Commission, 2013 IL App (2d) 120252WC.
Mlynarczyk v. Illinois Workers Compensation Commission, 2013 IL App (3d) 120411WC.
Diaz v. Illinois Workers Compensation Commission, 2013 IL App (2d) 120294WC.
Chicago Transit Authority v. Illinois Workers Compensation Commission, 2013 IL App (1st) 120253WC.
The Venture-Newberg Perini Stone and Webster v. Illinois Workers Compensation Commission, 2012 IL App
(4th) 110847WC.
Will County Forest Preserve District v. Illinois Workers Compensation Commission, 2012 IL App (3d) 110077WC,
970 N.E.2d 16, 361 Ill. Dec. 16 (3d Dist. 2012).
Johnson v. Illinois Workers Compensation Commission, 2011 IL App (2d) 100418WC, 956N.E.2d 543, 353 Ill.
Dec. 681 (2d Dist. 2011).
Metropolitan Water Reclamation District of Greater Chicago v. Illinois Workers Compensation Commission,
407 Ill. App. 3d 1010, 944 N.E.2d 800, 348 Ill. Dec. 559 (1st Dist. 2011).
Interstate Scaffolding Inc. v. Illinois Workers Compensation Commission, 236 Ill. 2d 132, 923 N.E.2d 266, 337
Ill. Dec. 707 (2010).
Cox v. Illinois Workers Compensation Commission, 406 Ill. App. 3d 541, 941 N.E.2d 961, 347 Ill. Dec. 92 (1st
Dist. 2010).
Circuit City Stores v. Illinois Workers Compensation Commission, 391 Ill. App. 3d 913, 909 N.E.2d 983, 330 Ill.
Dec. 961 (2d Dist. 2009).
Potenzo v. Illinois Workers Compensation Commission, 378 Ill. App. 3d 113, 881 N.E.2d 523, 317 Ill. Dec. 355
(1st Dist. 2007).
Cassens Transport Company v. The Industrial Commission, 218 Ill. 2d 519, 844 N.E.2d 414, 300 Ill. Dec. 416
(2006).
J.S. Masonry, Inc. v. The Industrial Commission, 369 Ill. App. 3d 591, 861 N.E.2d 202, 308 Ill. Dec. 137 (1st Dist.
2006).
Durand v. The Industrial Commission, 224 Ill. 2d 53, 862 N.E.2d 918, 308 Ill. Dec. 715 (2006).
Vogel v. The Industrial Commission, 354 Ill. App. 3d 780, 821 N.E.2d 807, 290 Ill. Dec. 495 (2d Dist. 2005).
Sisbro, Inc. v. The Industrial Commission, 207 Ill. 2d 193, 797 N.E.2d 665, 278 Ill. Dec. 70 (2003).
Peoria County Belwood Nursing Home v. The Industrial Commission, 115 Ill. 2d 524, 505 N.E.2d 1026, 106 Ill.
Dec. 235 (1987).
E.R. Moore Co. v. The Industrial Commission, 71 Ill. 2d 353, 376 N.E. 2d 206, 17 Ill. Dec. 207 (1978).
72
BIBLIOGRAPHY
National Council on Compensation Insurance, “Analysis of House Bill 1698,” 2011.
National Council on Compensation Insurance, “NCCI Proposes Decrease for Workers’ Compensation
Advisory Rates and Loss Costs in Illinois,” 2012.
State of Illinois, Illinois General Assembly, Legislative Research Unit, “Workers’ Compensation
Causation Standards,” December 16, 2010.
State of Illinois, Illinois General Assembly, Legislative Research Unit, “Changes to Workers’
Compensation Causation Standards—Addendum,” February 8, 2013.
State of Illinois, Office of the Attorney General, “Background on Workers’ Compensation Claims
Filed by State Employees and Reforms Proposed by the Office of the Attorney General,” March
2012.
State of Illinois, Office of Auditor General, “Management Audit of the Workers’ Compensation
Program as it relates to State Employees,” April 2012.
State of Oregon, Department of Consumer and Business Services, “Oregon Workers’ Compensation
Premium Rate Ranking Summaries,” 2004-2012.
73
ACKNOWLEDGEMENTS
The Illinois Chamber would like to thank Kathleen Bruns for her dedication
and diligence in writing this report in collaboration with the Illinois Chamber
staff and members. Her expertise shows through the pages of this report.
Thank you.
KATHLEEN BRUNS
Kathleen Bruns most recently worked as a staff attorney
for the Illinois House Minority Leader, Research and
Appropriation Staff from 2007-2012. She staffed various
committees including Civil Law, Insurance, Elections, and
Environment. Kathleen was the lead staffer for special
projects and committees including: workers’ compensation
reform, health insurance benefit exchanges, the impacts
of federal health care laws (Affordable Care Act), state
procurement reform, government officer and employee
ethics reform, and cemetery oversight.
Prior to position with the General Assembly, Kathleen worked for the Illinois Department of
Commerce and Community Affairs (now the Illinois Department of Commerce and Economic
Opportunity) for 15 years, in various programmatic and legal positions. She was named Associate
General Counsel in 1998. She worked closely with program staff in the development of legislative
proposals and administrative regulations to establish and implement economic development
programs, including the Economic Development for Growing Economy Tax Credit Program (EDGE),
Enterprise Zone and High Impact Business tax incentives, and the Employer Training Investment
Program. She was also responsible for developing solicitation documents and selection protocols
for the agency’s competitive grant programs.
Kathleen currently lives in Springfield with her husband.
Kathleen Bruns
University of Illinois J.D. 1987
University of Illinois, B.A. Political Science
74
Chicago Office
(312) 983–7100
300 South Wacker Drive
Chicago, IL 60606
Springfield Office
(217) 522–5512
215 East Adams Street
Springfield, IL 62701
www.ILChamber.org
of